As is evident from these passages from a recent unfair dismissal case decision, there is a world of difference between a forced resignation which might constitute a constructive dismissal and one which is not unreasonable.
“Conclusion on forced resignation
[202] In considering the circumstances overall and assessing whether Ms Noble had a real or
effective choice but to resign I note the caution expressed by a Full Bench in Doumit v ABB
Engineering Construction Pty Ltd:
41
“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 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.”
[2023] FWC 941
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[203] This caution notwithstanding, there are circumstances where it can be reasonably
concluded that an employer’s conduct in response to an objectively found material risk to an
employee’s health and welfare could trigger a resignation such that it is a dismissal by way of
forced resignation.42 However, as indicated in Green v KS United Pty Ltd each case is to be
determined on its own facts.43
[204] Based on the aforementioned findings, one element of the conduct of the employer
clearly points to a finding of forced resignation (its inadequate investigation of the 2 December
2022 incident resulting in its failure to appreciate its seriousness and impact on Ms Noble) and
one other element does so to a material degree (the measures taken concerning Ms Galvin
including the lack of advice about the apology). Other elements of the employer’s conduct do
not do so.
[205] Considered overall, I do not find that Ms Noble had no real or effective choice but to
resign.
[206] Ms Noble had a number of choices short of resignation.
[207] She had a choice to allow the conflict resolution process being conducted by Ms Russell
to be completed. She resigned mid-point and knowing it was incomplete. This was a real and
effective choice because the process was occurring, had directly engaged Ms Noble, was being
independently and professionally conducted, and had the goal of re-establishing a working
relationship between the two.
[208] Ms Noble also had a choice to give the employer’s functional separation proposal a go,
even if only on a temporary basis until Ms Russell’s work was completed. Ms Noble resigned
without doing so even after being told it could be interim only if she preferred or could be varied
if she had practical suggestions to make. It was a real and effective choice because it came from
an owner, was capable of almost immediate implementation and had the goal of largely
excluding Ms Galvin from her immediate working environment.
[209] Ms Noble also had the choice to seek leave at least until Ms Russell’s work was
completed. Whilst Ms Noble had only a small amount of paid leave remaining, the employer
had in recent months accommodated leave requests and requirements for time off. It was an
option opened up by Ms Henning on 12 December for discussion at least, but not one pursued
by Ms Noble.
[210] Put simply, after being told by Ms Henning on 12 December 2022 that there would be
days where Ms Noble and Ms Galvin would still be rostered to work at the premises on the
same day as herself, Ms Noble had had enough. She did not wish to engage in further discussion,
negotiation or meetings. Ms Noble resigned on a day and at a time of her choosing. She had
rational reasons for resigning but she was not, objectively considered, forced to do so.
[211] I accept Ms Andrews evidence that Ms Noble was likely to have been under
considerable stress and feeling a perceived lack of employer workplace support. I have found
that she had held back giving her resignation for a week to assess what the employer’s position
would be as it related to her and Ms Galvin. The assessment Ms Noble made was that the
[2023] FWC 941
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employer was not meeting her expectations and as a result she lost confidence in the owners
insofar as protecting her wellbeing was concerned.
[212] Ms Andrews’ opinion that a causal relationship existed between the events of 2
December 2022 (including Ms Noble’s perceptions of lack of employer support) and the
resignation accord with findings I have made. However, given the constraints faced by a treating
health professional on being fully informed of the complete workplace narrative, a fact
acknowledged by Ms Andrews in evidence,44 the psychologist’s opinion on the resignation
having been forced by the employer is far from determinative. I have made objective findings
on those matters based on the totality of the evidence including actual and not simply perceived
employer conduct.
[213] It is not difficult to have considerable empathy for the situation faced by Ms Noble. She
rightly put what she considered to be her health and wellbeing first. She had been the target of
an unprovoked incident of workplace bullying and, [redacted text redacted text redacted text
redacted text redacted text] her decision to resign was not unreasonable. This does not however
make her resignation forced. The employer neither wanted her to do so, had not intended that
she do so nor denied her an effective or real choice when doing so.
[214] There was no forced resignation within the meaning of s 386(1)(b) of the FW Act.
Conclusion
[215] I have not found that Ms Noble’s employment was terminated by Smiling Samoyed at
its initiative within the meaning of s 386(1)(a) of the FW Act. I have not found that Ms Noble’s
resignation was forced within the meaning of s 386(1)(b). Accordingly, Ms Noble was not
dismissed from her employment as a brewer.
[216] Accordingly, there is no utility in dealing with merit or remedy issues as there can be
no unfair dismissal as there was no dismissal.
[217] The jurisdictional objection by Smiling Samoyed is upheld. Ms Noble’s application
under s 394 of the FW Act fails for want of jurisdiction and must be dismissed.
[218] An order giving effect to this decision will be issued in conjunction with its
publication.”
Noble v Smiling Samoyed Pty Ltd [2023] FWC 941 delivered 24 April 2023 per Anderson DP