These concluding remarks in an unfair dismissal decision of the Fair Work Commission express the most common outcome of a constructive unfair dismissal case namely that the applicant failed to discharge what is effectively a heavy onus when endeavouring to characterize a resignation as a dismissal.
“Consideration
[27] I am unable to identify (on the evidence before me) any conduct of the Respondent that
can be described as demonstrating an intention to bring the Applicant’s employment to an end.
The evidence does not show that the Respondent intended anything other than to maintain the
employment relationship with the Applicant on the contractual terms that had been agreed
between them.
21
[28] I am equally unable to identify any conduct of the Respondent that might be said to
bring about a “probable” end to the Applicant’s employment. In my view, it was not “probable”
that the Applicant would resign in response to the options that were actually presented to her
by Mr Daly at the meeting on 6 February 2023.22 They were both options that are consistent
with the contractual terms that had been agreed between the parties.
23
[29] Even taking the Applicant’s case at its highest, and assuming for a moment that the
Applicant’s claims as to the two options that were put to her by Mr Daly at the 6 February 2023
meeting concerned immediate dismissal, or dismissal on 19 February 2023, those two options
(or choices) evaporated when Mr Daly sent his clarifying text message to the Applicant advising
her that she would be going back to her Substantive Role (at the Woolworths Green Valley
Store) either immediately or post 19 February 2023.
24 In other words, the Applicant’s decision
to thereafter reconfirm her resignation to Mr Daly was an unequivocal choice she made wholly
on her own, which the Respondent was entitled to accept.
[2023] FWC 1082
8
[30] In view of paragraphs [27] to [29] above, I find that the Applicant was not forced to
resign by the Respondent, and was not otherwise “dismissed” by the Respondent within the
meaning of s.386 of the Act.
Conclusion
[31] Given that I have found that the Applicant was not “dismissed” by the Respondent
within the meaning of s.386 of the Act, I will issue an Order dismissing the Applicant’s
Application (to be published contemporaneously with this decision).”
Richards v Woolworths Group Limited [2023] FWC 1082 delivered 17 May 2023 per Boyce DP