Fair work legal advice issue; was resignation forced?

Here is an extract from a recent unfair dismissal decision which deals with the issue of whether a resignation was “forced” and thus capable of constituting a dismissal for the purposes of an unfair dismissal case.

Has the Applicant been dismissed?

 

[47]    A threshold issue to be determined in this matter is whether the Applicant has been dismissed from her employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

 

(1)      A person has been dismissed if:

 

(a)      the person’s employment with his or her employer has been terminated on the employer’s initiative; or

 

(b)     the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

 

[48]    Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

 

[49]    The authorities in respect of the meaning of the term “dismissed” are well traversed and it is useful to detail some of them at this point. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd43 (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’

 

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-

 

“… a termination of employment at the instance [of] the employer rather than of the employee.”

 

and at 5:-

 

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what

 

 

 

were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”

 

[50]    In a more recent Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli44 (Bupa), the Full Bench was dealing with an appeal of a decision in which the member at first instance found that the dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a “forced” resignation and how the passage of the Act impacted prior authorities when it stated as follows;

 

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

 

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

 

  1. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

 

  1. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations;

 

  • where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
  • where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

 

[51]    Having identified there were two elements to s.386(1) and after extensively considering the authorities, the Full Bench then said;

 

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

 

(1)      There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed

 

 

 

in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

 

(2)      A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” (my emphasis added)

 

[52]    In the present matter the Applicant articulated in the proceedings that she had been dismissed within the meaning of the second limb of s. 386(1) that being she had resigned from his employment with the Respondent, but was forced to do so because of conduct, or a course of conduct, engaged in by his Respondent.

 

Consideration

 

Whether Respondent’s conduct or course of conduct forced the resignation of the Applicant (s. 386(1)(b))

 

[53]    The Applicant contends that her resignation was forced by conduct, or a course of conduct engaged in by the Respondent. The conduct she points to is the nature of the work she was required to undertake, that of dealing with traumatic incidents and subject matter as well as the volume of work. She submits that the cumulative effect of the intensity and nature of the work was that she suffered a mental injury of which she says the Respondent was aware. She further submits that the steps purportedly taken by the Respondent to address her concerns were inadequate and failed to address the underlying issue of the intensity and nature of the work.

 

[54]    Turning firstly to the nature of the work undertaken by the Applicant. She was initially engaged as a Senior Workplace Investigator which required her to conduct investigations into allegations of misconduct in workplace environments including childcare, education, aged and disabled care. I readily accept that some of the material dealt with by the Applicant and her colleagues may have been challenging and at times potentially confronting. The Applicant gave unchallenged evidence of certain traumatic incidents she experienced during her employment, the most recent cited incident being in early 2023 which involving a disabled client that self- immolated. The Applicant cites various failures of the Respondent to effectively support her during and following these traumatic incidents. The Respondent chose not to rebut the criticisms made of their response to the incidents the Applicant refers to in her evidence.

 

 

 

[55]    The Applicant’s role did change somewhat over time such that she stepped back from operational work (investigations) and undertook the Principal Reviewer role in 2022 which required her to be the primary reviewer for all reports and investigations. However, the intended step back from investigative work through her appointment to that role was frustrated by the organisational need for the Applicant to increasingly return her focus to investigative work. Against this background, the Respondent announced a restructure in mid-2023, the proposed effect of which on the Applicant was to move her back into a full-time operational investigative role. The Applicant was extremely unhappy with both substance of the role and the manner in which it was announced. This led her to warn the Respondent that unless she was able to maintain a reviewer role as opposed to an investigative role, she would feel compelled to seek alternate employment, which she proceeded to look for.

 

[56]    What then followed the restructure announcement were various discussions between the Applicant and the Respondent culminating in a proposal made by Mr Scopelliti on 7 August 2023 that allowed the Applicant a choice as to whether she moved into a consultancy role or remained in a full-time role in which she would be primarily report writing, proofing, doing quality assurance and conducting reviews. The Applicant accepted the latter option and agreed to try and make it work.

 

[57]    After returning from a period of several weeks annual leave on 11 August 2023 and having accepted the full time role outlined immediately above, the Applicant reluctantly agreed to undertake some investigative work in late August 2023. After conducting an initial interview with a distressed party on 5 September 2023 as part of that investigation, she left the workplace and apart from returning to work briefly on 9 September 2023, remained off work until her resignation on 22 October 2023. The Applicant contends that the request for her to undertake the investigative work was contrary to the assurance provided by Mr Scopelliti in his earlier communication. After going off on sick leave on or about the 5 September 2023 the Applicant submits there was limited further communication between the Respondent and herself apart from her providing medical certificates which were acknowledged by the Respondent. The Applicant also refers to the failure of the Respondent to make contact with her when she did return briefly to the office on 9 September 2023.

 

[58]    I am prepared to accept the Applicant’s evidence that the level of support offered to the Applicant by the Respondent in the immediate wake of the above-referred traumatic incidents may have left something to be desired. I do however accept that evidence with some caution in circumstances where there was no evidence of the actual communications between the Applicant and the employer in the immediate wake of the incidents. I also note the Applicant’s acknowledgement of the introduction of EAP at some point although she does not appear to have made use of that service herself. Accepting that the Respondent’s response and support at the time of the incidents may not have been up to the Applicant’s expectation of contemporary HR practice, the temporal link of these incidents with the termination is tenuous at best, however.

 

[59]    The incidents referred to by the Applicant occurred “sometime in 2020 or 2021 (pre- Covid)”, “January 26, 2022” and early 2023. Reliance on these events by the Applicant also ignores other measures that were taken by the Respondent to address the Applicant’s concerns in the intervening period. This included firstly moving the Applicant into the Principal Reviewer role in 2022, which although not ultimately successful from the Applicant’s

 

 

 

perspective due to operational demands, was a step taken by the Respondent to allow the Applicant to step back from operational work. The second measure taken by the Respondent was its response to the Applicant’s concern over the mid-2023 restructure. After various discussions, the Applicant was offered on 7 August 2023 an ongoing full-time position in which her primary role would “be report writing, proofing, quality assurance and conducting reviews”. The proposed role sought to address the Applicant’s desire to undertake “review” type work rather than “operational” work. This was a reasonable step taken by the Respondent to address the Applicant’s concerns over the type of work she undertook.

 

[60]    The Applicant submits that despite the new role being review focussed she was allocated an investigation in late August 2023 which she claims was contrary to an assurance given to her by Mr Scopelliti. Contrary to the Applicant’s claim, the Respondent gave no such assurance that she would not be required to do any investigations. In his email of 10 August 2023 Mr Scopelliti wrote to the Applicant on her return from annual leave and actually stated “Thank you for your email. We are pleased that you are keen to return to work next Monday. We certainly have enough work to keep you busy with over the next few weeks with minimal or no client or witness contact”. Noting the Respondent is in the business of conducting workplace investigations it is difficult to see how it could give any operational employee a ‘pass’ on conducting investigations.

 

[61]    It follows from the foregoing that I am not persuaded that the nature of the work and the Respondent’s response to the Applicant’s concerns over that work were such as to leave the Applicant no alternative but to resign from her employment. To the extent that the Respondent’s earlier response to the traumatic incidents referred to by the Applicant may have been inadequate, by mid-2023 it had taken steps to address the Applicant’s concerns over the work she performed by proposing a new role in which the Applicant would be primarily focussed on review work. I do not accept that the Respondent’s conduct in relation to the Applicant’s role was either intended to bring about her resignation or that it (her resignation) was likely to be the probable result. To the contrary, the Respondent sought to retain the Applicant as an employee (or in the alternative as a consultant) and took steps to make that attractive to her (or at least palatable) including by increasing her salary again in August 2023 despite only having recently increased her salary by $10,000 in late 2022.

 

[62]    I now turn to the Applicant’s submissions regarding her hours of work which she says required her to routinely work long hours including regularly working weekends. While acknowledging the Respondent’s approval of her requests to move to a 9-day fortnight in 2020 and to a 4-day week in early 2023, she submits that the conditions agreed to for the 4-day week that were intended to support her manage her hours of work were not in fact implemented by the Respondent, thereby eroding the intended benefit of the reduced workdays per week. She submits this was further evidence of the Respondents failure to provide her with the necessary support to manage her workload. She did however concede that by about February 2023 when she moved to a four day week, the workload pressure and consequent hours of work demands had reduced. The following points may be made in relation to the Applicant’s hours of work.

 

[63]    Despite the Applicant claiming she consistently worked excessive hours of work, there were no records of hours worked produced in evidence by either party. The Applicant’s evidence of hours worked was undermined by Ms Costa’s evidence that the Respondent had no visibility of the Applicant’s hours due to her not inputting that detail into Trackops or her

 

 

 

Outlook calendar. I approach with some caution Ms Costa’ evidence on the use of Trackops for billable hours recording by the Applicant. That is because Ms Costa conceded that if the Applicant had failed to input her billable hours, that would have created additional work for the accounts staff which would have been followed up with the Applicant, of which follow up Ms Costa had no knowledge and produced no evidence.

 

[64]    In the above circumstances I prefer the Applicant’s evidence that at least from February 2023 when she was directed to input her billable hours into Trackops, she did so. That of course does not reveal the whole picture as non-billable hours, which Ms Costa states most employees put into Trackops, was not put into Trackops by the Applicant. The Applicant’s evidence on her recording of non-billable hours was more equivocal and I accept that the Respondent did not have visibility of the full hours worked by the Applicant.

 

[65]    The Applicant was also critical of the Respondent’s failure to action condition (e) in Mr Scopelliti’s email of 22 February 2023, that being the use of TOIL to manage any excess hours worked in each month by the Applicant. In truth, the responsibility lay with both parties to implement that condition and as I have already found above, the Applicant was not diligent in recording all of her hours of work, specifically her non-billable hours. Absent the accurate recording of her hours of work the Applicant can hardly complain at the Respondent’s “failure” to implement the TOIL arrangement.

 

[66]    There is no evidence that in the wake of Mr Scopelliti’s email of 22 February 2023 that the Applicant raised a concern regarding excessive hours or that she requested to use TOIL to address excessive hours that she had worked in the previous month. The only evidence given was that of Ms Costa who stated that the Applicant had requested some time off occasionally, but Ms Costa was unable to reconcile those requests with the Applicant’s hours of work records for the reasons earlier set out above. The fact that the TOIL arrangements were not actually implemented is more likely explained by the fact that the Applicant’s hours of work had in fact reduced to a manageable level by early 2023, a point conceded by the Applicant during cross- examination.

 

[67]    While there is no probative evidence of actual hours worked by the Applicant, I am prepared to accept that at various times during her employment with the Respondent she was required to work long hours. This claim was noted by Mr Scopelliti in his email of 22 February 2023 when dealing with the Applicant’s request to work a 4-day week. However, I am satisfied that by early 2023 those hours of work had reduced. In these circumstances the claim that the hours of work required of the Applicant led to her resignation in October 2023 cannot be sustained. Moreover, the Respondent actually initiated changes designed to assist the Applicant manage her hours of work including by agreeing to allow her work a 4-day week and to ultimately place her in a position that was primarily a review role. I also note for the sake of completeness that arising from the COVID-19 pandemic period, the Applicant had considerable flexibility in her working arrangements, in terms of when she worked her hours and whether she worked from home or in the office, a point she accepted during cross-examination.

 

[68]    I finally turn to the Applicant’s submission that the demands of her work with the Respondent and the lack of support she received took a toll on her health such that she had no choice but to resign. The force of that submission is almost entirely undermined by the absence of evidence that would support the Applicant’s claim that she suffered from “vicarious trauma

 

 

 

and PTSD” as claimed. The medical evidence is in fact limited to two medical certificates from September and October 2023 which did not specify the nature of her medical condition and the Letter of Support from her GP dated 6 March 2024.

 

[69]    The Applicant conceded that despite various claims made by her to the Respondent during her employment, she had not provided the Respondent with any medical reports or diagnosis on which they could have acted to modify her role to accommodate any medical restrictions or limitations. Despite being critical of the Respondent, the Applicant consistently failed to provide requested information on her medical condition. This can be seen by her not responding to condition (b) in Mr Scopelliti’s email of 22 February 2023, that being to provide information regarding her auto immune and back condition if it was likely to affect her ability to undertake her duties. Secondly, when the Respondent sought a medical clearance from the Applicant before her return to work in early August 2023, she resisted the request on the basis of the cost, inconvenience, and her perception that the Respondent’s request was punitive rather than supportive. Finally, she did not respond to Ms Costa’s email of 10 October 2023 in which the Respondent offered to pay for a required medical clearance report after her absence from work of several weeks.

 

[70]    At least from early 2023, the Respondent was aware that the Applicant claimed to be suffering from various medical conditions. It sought information from the Applicant, requested medical clearances where it believed appropriate and also offered to pay for the reasonable cost of such a report in October 2023. Apart from providing non-specific medical certificates covering her absences, no other medical information was provided to the Respondent by the Applicant. In these circumstances there was no reasonable medical basis upon which the Applicant could have expected the Respondent to make adjustments to her work. At no stage did the Applicant provide the Respondent with a medical report that specified the duties she was not capable of performing because of her medical condition.

 

[71]    Notwithstanding the absence of any medical evidence, the Respondent nonetheless agreed to changes to the Applicant’s hours of work (in February 2023) and her role (in August 2023). These actions are not congruent with the Applicant’s claim that the conduct or course of conduct engaged in by the Respondent was directed to securing her resignation or would have the probable result of achieving that outcome. A final point to be made is that the Applicant gave evidence that she had considered making a workers compensation claim but chose not to proceed with one based on caution expressed to her by her GP that for many people, making such a claim prolonged the harm. This was a conscious decision made by the Applicant and was not pressured or coerced by the Respondent.

 

[72]    It follows from the foregoing that I do not accept that the Applicant “had no effective or real choice but to resign”. I accept that the demands of the Applicant’s roles, both in the nature of the work and the hours, may have been great up to early 2023. The claimed impacts on the Applicant, unsupported as they were by medical evidence, led the Respondent to agree to changes both in the Applicant’s hours of work and her role. These were steps taken by the Respondent in an effort to retain the Applicant. The fact that the Applicant ultimately resigned was not in my view caused by the conduct or course of conduct engaged in by the Respondent.

 

[73]    It follows that the Applicant was not dismissed within the meaning of s 386(1)(b) of the Act. However, if I am wrong in that conclusion, it is appropriate for me to deal with thesecond jurisdictional objection that the application was made out of time. For the reasons set out below I would also decline to grant an extension of time for the application to be made.”

Davis v Wrekton Pty Ltd (2024) FWC 705 delivered 26 March 2024 per Masson DP