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