“Forced resignations” and unfair dismissal

This is a very useful decision of the Fair Work Commission dealing with the very common concept of a a “forced resignation”.

“Section 394(1) of the Act states that a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.

 

  • Section 386(1) of the Act outlines when a person has been dismissed and states as follows:

 

“(1) A person has been dismissed if:

 

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

 

  • 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 ”

 

  • The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee

 

to be terminated at the initiative of the employer.1 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.2

 

  • While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.3 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.4

 

  • All the circumstances – including the conduct of both the employer and employee – must be examined.5 In other words, it must be shown 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.”6

 

  • In ABB Engineering Construction Pty Limited v Doumit (1996):

 

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.

 

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

 

The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”7

(emphasis added)

 

  • In Pawel v Australian Industrial Relations Commission,8 the Full Bench noted:

 

“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”

 

  • Forced resignation has been interpreted by the Commission though the following meanings:
  • its actual conduct, forced to do so, such that there was an element of compulsion present9
  • a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship”10
  • Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect.11
  • The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the 12
  • In consideration of the above principles, I am not satisfied that the Applicant is eligible to make an unfair dismissal claim because she was not forced to resign.

 

  • Illegal process for breaks

 

  • I am not satisfied that the Applicant was denied the ability to take her breaks. If the Applicant was dismissed by the Respondent for taking breaks, the claim of dismissal would exist. However, this is not the case.

 

  • The Applicant’s jurisdictional argument was the requirement of the Applicant to be available to answer emergency calls during breaks was unfair and contrary to clause 3 of the Clerks—Private Sector Award 2020 (the Clerks Award).

 

  • Clause 3 of the Clerks Award states:

 

“An employee who works more than 5 hours at a time is entitled to one 30 to 60 minute unpaid meal break, to be taken within the first 5 hours of work and within 5 hours after resuming work after a meal break.”

 

  • The interpretation of the clause may be subject to clarification compared to the However, the Respondent has provided a comprehensive answer on multiple occasions indicating that the Applicant was not denied breaks that were inconsistent with the Award.

 

  • The Applicant’s contract of employment states the following:

 

“You will be entitled to a 30-minute meal break to be taken before the end of 5 hours of your shift.

 

You will also be allowed two 10-minute rest breaks to be taken at times as agreed with your Manager.

 

Vitalcare’s Rosie service is an emergency response service to clients who may be in life threatening situations. Therefore, the nature of incoming call patterns is unpredictable. It is a condition of your employment that at all times, even during meal and break times, you are within earshot of your Rosie telephone and able to answer emergency calls.”

 

  • On 14 June 2023, Dr Masihpour sent the following email to clarify the new procedure:

 

“• When you are away from your computer and you may not be able to answer the call within the timeframe you need to log this as a break before you leave your desk. If you log your break, and you miss an alarm, we do expect you to get back and log on quickly to assist. (note that you can’t log the break after you miss a call though). Of course, If you are on a logged break and are required to answer an alarm, then you can take the outstanding time at a later time in your shift. For that reason, all breaks are to be taken during the first 6 hours of your shift so it can be completed during your shift.

 

  • If you are working on a shift (or partial hours of a shifts) where you are the only primary operator, there will always be at least one other person operating as a “secondary”; and in a situation where there are multiple alarms activated or you can’t take the call within the first attempt, the secondary operator will be able to However the expectation is that you remain logged in during this break time, and jump to assist where necessary. While the chance is very low that a call will come through during this time, you’ve got more than enough time to have some time to yourself. Just to put things in perspective, at the moment the volume of calls is less than 6% of the total time you are on shift during an overnight shift; which means there is plenty of time to recover if your break gets interrupted.
  • Just for clarification, just because you work on your computer doesn’t mean you can’t get up and move around during your shift (get up, stretch your legs, etc!). What we do require is that you need to be able to answer any alarms without missing them…”

 

  • On 4 July 2023, Dr Mashipour had raised concerns with the Applicant that she had not been compliant with the Dr Masihpour sent an email directly to the Applicant stating that there was sufficient time throughout shifts for the Applicant to take a break and that an interrupted break can be made up later in a shift.

 

  • On 11 July 2023, the Applicant sent an email raising concerns with break times to Mr Logan Ross and Mr Stuart Ross (Directors of the Respondent). The Applicant stated that she did not receive any breaks throughout her shifts because she was always required to be on

 

  • Mr Stuart Ross replied to the Applicant’s emails as follows:

 

“…Importantly Karina, you do have a break time during your shift, and the process that is implemented records that. And, if you chose to be interrupted during your break by answer a call, that’s great and we appreciate it, but there is no obligation for you to do so. Just like in a regular office, there are others that can take the call. But if you do decide to take a call that appears during your break then you can make up that break time during your shift – again recorded through the process. And as you note, there is a lot of down time during a shift so that should provide ample opportunity to make up your full break time.”

 

  • The Applicant was informed she was under no obligation to answer calls during her breaks. The Respondent’s policy that the Applicant remain logged in during any breaks, but was not expected to interrupt her break.

 

  • On 19 July 2023, Dr Mashipour identified that the workload is relatively low even during the busy periods and there would be enough downtown to take the required break periods. Dr Mashipour provided the data to support this.

 

  • The Respondent’s evidence was that the Applicant spent less than 10% of her total shift time taking calls on average which meant she had flexibility to take breaks and had the ability to make up time if her break was interrupted. If this was a persisting issue, the matter could have been raised through a dispute procedure with the Fair Work Commission as provided in the Employee Handbook to determine whether the Respondent complied with the Award or alternative arrangements to address the Applicant’s concern.

 

  • On the evidence provided, the Applicant was not denied her breaks, and there was no indication of a forced resignation on the employer’s conduct.

 

  • Underpayment

 

  • The Applicant submitted that she was underpaid as she was not compensated for her work through her unpaid meal break under clause 15.4 of the Clerks Award. Therefore, the Respondent had repudiated the employment contract per Deputy President Mansini’s decision in Michael William Dunn v Serco T/A Serco Traffic Camera Services (Vic) Pty Ltd (Serco):13

 

“[it] may be repudiatory for an employer to reduce wages without the employee’s consent or where there is a serious intrusion on the employee’s status or responsibilities in a way which is not permitted by the contract and as such evinces an employer’s intention to no longer be bound by the contractual terms.”

 

  • Clause 4 of the Clerks Award states:

 

“An employer must pay an employee who is required to work through their meal break 200% of the minimum hourly rate from when the meal break would have commenced until a meal break is allowed.”

 

  • The Applicant must demonstrate the constructive dismissal was more than mere causation. Possible scenarios of repudiation in light of the Applicant’s material would be applied in cases where the Applicant’s wages were reduced from $30 an hour to $24 an hour, or the role was changed significantly enough that it was different from the original role.

 

  • In this case, the Applicant’s wages were not reduced, nor was she demoted without her consent. I am not satisfied that the issue of meal breaks reaches the standard of constructive dismissal as she was not obligated to take calls during her The breaks simply had to be logged.

 

  • In terms of the backpay issue, it was recognised that the employees were not paid under the correct Award and that it would be rectified on 27 March 2023. It appeared that the Applicant’s classification had been reviewed after the Respondent had received correspondence from the Fair Work Ombudsman. The underpayment surrounding the disparity on the meal breaks had not been substantiated in the evidence before me.

 

 

 

  • There is no identifiable underpayment that would suggest a repudiation of the employment relationship by the Respondent.

 

  • Bullying and Intimidation/Lack of Communication

 

  • The evidence provided does not indicate a lack of communication. The Applicant was asked to log her breaks on 28 June 2023. Dr Mashipour and Mr Ross had provided open communication with the Applicant to raise her concerns surrounding the breaks per Dr Mashipour’s email on 4 July 2023.

 

  • There was a claim made by the Applicant regarding pressure placed by Dr Mashipour from a separate matter on 8 August 2022 when a former employee made a claim against the Respondent. The allegation was asking the Applicant to expand on a letter of recommendation that was previously written to the former employee and was instructed by Dr Mashipour to write a letter with her instruction to be submitted as evidence.

 

  • I have not placed weight on assessing the credibility of this evidence as it is not relevant to the question of whether the Applicant was forced to resign. The alleged event occurred in 8 August 2022 and the Applicant remained in her employment until 19 July 2023.

 

  • Lack of staff/Operational requirements

 

  • The Applicant raised issues with lack of staff and the management of Dr Mashipour. The Applicant raised issues with stress about opening her emails on every shift, and that it was getting worse when Dr Mashipour questioned her bathroom breaks.

 

  • It is acknowledged that the nature of the Applicant’s work can be stressful. Vitalcare Pty Ltd operates a 24-hour personal emergency response service which receives messages and phone calls from aging and frail clients 24-hours a Calls are initiated by clients pressing a button on a personal device or fixed nurse call point when they are feeling unwell, had a fall, or require medical support.

 

  • The Respondent had assessed the operational requirement and the downtime per each shift which was communicated to the Applicant. In consideration of the operational requirements, the Applicant had enough downtime to take an uninterrupted break although she was required to be near a phone as part of her role. This does not support an indication that there was forced resignation.

 

Conclusion

 

  • In consideration of all the evidence provided before me, the Respondent did not engage in conduct, or a course of conduct, that forced the Applicant to resign from her employment.

 

  • The Applicant was not dismissed in accordance with s.386 of the Act. Therefore, the Applicant is not an employee who is a persons protected from unfair dismissal and the Respondent’s jurisdictional objection is upheld.

 

  • The Application is dismissed. I Order