Unfair dismisal and “forced resignations”

This is an extract from a Fair Work Commission appeal which contains a good summary of the legal principles involved in a “forced resignation” case.

“Consideration

[24] In this matter, the appellant’s principal contention below is that he was forced to resign

by the Respondent because of the Respondent’s failure to allow him to return to work by 28

October 2022, notwithstanding the medical evidence supporting the view that he was able to

do so. The issue of ‘forced resignation’ for the purposes of s 386(1)(b) was dealt with in the

decision of the Full Bench in Bupa at [47]:

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 probabl[e] result of the employer’s

conduct such that the employee had no effective or real choice but to resign. Unlike the situation

in [s 386(1)(a)], the requisite employer conduct is the essential element.

[25] We consider that the Deputy President’s conclusion that the respondent’s conduct did

not meet this description was plainly correct. As the evidence plainly demonstrated, the

respondent had not foreclosed the possibility of the appellant ever returning to work, had done

no more than require the appellant to remain away from work at least until he underwent the

further medical procedure on 28 October 2022, and had secured a position for the appellant on

a different mine site upon his ultimate return to work.

25 We agree with the Deputy President

that the respondent’s conduct did not disclose an effort to prevent the appellant’s return to work

but was rather, particularly in light of the Sim Report, a ‘reasonable stance to adopt’ in the

circumstances.

[26] The Deputy President was also right to take into account the circumstances immediately

surrounding the appellant’s instructions to his lawyer concerning the sending of the resignation

letter. These circumstances were plainly relevant to determining whether the appellant’s

resignation was forced or voluntarily given, and were also relevant to the appellant’s credibility.

[27] The Deputy President’s view that the appellant’s evidence concerning the circumstances

of the resignation letter lacked credibility was reinforced at the hearing before us. In the course

of the hearing, the appellant submitted that the incident which ‘forced’ his resignation was his

conversation with Mr Norris on 27 October 2022, during which he was given an indication that

he would be returning to work at the Mesa J mine, a site where he alleged he had previously

experienced bullying behaviour. The appellant asserted that he had considered that prospect as

being one which would be detrimental to his mental health and inconsistent with his ongoing

employment. He said he felt at that point he had no option but to resign.

[28] The appellant then submitted that he instructed his lawyer to issue the letter of

resignation on 28 October 2022. When queried further about this, given that this was the day of

the scheduled medical procedure, the appellant changed his position and indicated that he had

in fact instructed his lawyer to do so on 27 October 2022, before he had the critical conversation

[2023] FWCFB 140

6

with Mr Norris. When it was pointed out to him that this was inconsistent with his position that

it was the conversation with Mr Norris that forced him to resign, the appellant changed his

version of events again and said that the instruction to his lawyer came after the conversation

with Mr Norris. This shifting account, in combination with the fact that the appellant had

received a job offer from another employer on 28 October 2022 and that the resignation letter

was not sent until 7 November 2022, renders implausible the appellant’s contention that he was

dismissed, by way of forced resignation, on 27 October 2022.

[29] For completeness, whilst it appears not to have been seriously contended at first instance

that the appellant was dismissed on the employer’s initiative within the meaning of that

expression in s 386(1)(a) of the FW Act, the Deputy President nonetheless also considered and

rejected the notion that the Appellant had resigned ‘in the heat of the moment’ as discussed in

Bupa. In our view that was the correct conclusion.

[30] We are satisfied that the Deputy President also appreciated the need to assess the

circumstances surrounding the termination objectively. In Bupa the Full Bench cited the

decision of the Federal Court in Koutalis v Pollett26 where Rares J observed:

The question whether a resignation did or did not occur does not depend upon the parties’

subjective intentions or understandings. Rather, it depends upon what a reasonable person in the

position of the parties would have understood was the objective position immediately after Mr

Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each

party to the conversation had said or done, in light of the surrounding circumstances. …

[31] In our view, there is no objective basis on which it is possible to conclude that the

respondent engaged in conduct with the intention of bringing the employment to an end, or to

conclude that the termination of the appellant’s employment was the probable result of the

respondent’s conduct because the employee had no effective or real choice but to resign. That

is consistent with the view expressed by the Deputy President at paragraph [95] of her decision.

[32] There is no arguable case of appealable error in the Deputy President’s decision and no

other public interest or discretionary basis upon which permission to appeal should be granted.”

 

Hill v Pilbara Iron Company (Services) Pty Ltd [2023] FWCFB 140 delivered 18 August 2023 per Hatcher J, Easton DP and Roberts DP