Unfair dismissal and resignations

These concluding remarks from an unfair dismissal decision of the Fair Work Commission are a very sound and practical explanation of the circumstances in which the resignation of an employee may (or may not, as in this case) be regarded as a dismissal.

“Consideration

[203] A person is only eligible to claim unfair dismissal where they are ‘dismissed’. Section 386 of the Act defines the term ‘dismissed’ exhaustively to mean a situation where:

  1. a person’s employment has been terminated at the employers initiative, or
  2. a person was forced to resign because of the conduct or a course of conduct engaged in by the employer.

[204] When determining whether or not a person was ‘forced to resign’, the Commission will consider whether: the employer engaged in conduct with the intention of bringing the employment to an end; or the end of the employment was the probable result of the employer’s conduct because the employee had no effective or real choice but to resign. 23

[205] The applicant bears the onus of proving the respondent’s actions restricted the possibilities available to him, so the only reasonable alternative was to resign, with that resignation being a reasonable reaction to the respondent’s actions. 24 This is a high threshold.

[206] In O’Meara v Stanley Works Pty Ltd, it was held that it is not enough to simply establish that the acts of the employer resulted ‘directly or consequentially in the termination of the employment’. 25

[207] The acts of the employer must do more than that. They must close off all other possibilities and include some compulsion such that a resignation in the face of the conduct could be considered a reasonable response. In ABB Engineering Construction v Doumit, 26 the Full Bench of the Fair Work Commission found that caution should be exercised when finding constructive dismissal:

‘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.’ (underlining added)

[208] Authorities that consider circumstances where the resignation was given in the heat of the moment are not relevant in this case.

[209] In the case of Celia O’Keefe v Ramsay Health Care Australia Pty Limited which concerned a constructive dismissal application by an employee alleging she was bullied during her employment. 27 Deputy President Asbury held at [5] that she was not required to make a finding on whether or not the applicant in that case had been bullied within the meaning of s789FD of the FW Act. In dismissing the application in that case, Deputy President Asbury held at [151]:

“Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.”

[210] Turning to consider the relevant facts of this matter, a number of the events the applicant complained about happened a long time before he resigned. He complains of particular events which occurred in September 2019, March 2020, June 2020 and two in December 2020.

[211] Given the time that had passed since these particular events occurred, the Commission is not satisfied that these events demonstrate an intention by the respondent to bring his employment to an end nor that those events meant he had no real choice but to resign in December 2021 when he did.

[212] More recent events of which the applicant complained were in August 2021, when he applied for a senior role but was overlooked for the promotion, and in September 2021 when Mr Cullen removed his rights to negotiate solutions to customer complaints. Whilst these events would understandably have disappointed perhaps distressed or even angered the applicant there is no basis for the Commission to conclude that the respondent by these actions intended to bring the employment to an end nor is the Commission satisfied that because of these events the applicant had no real choice but to resign.

[213] Self-evidently, some of the other events the applicant complains about are properly characterised as disagreements between the applicant and the respondent’s management about various operational matters.

[214] These conclusions should not be taken as the Commission accepting that the respondent had acted properly at all times or was always blameless. Clearly there were some robust conversations which perhaps some of the respondent’s managers could have and should have dealt with more professionally than they did.

[215] The apparent trigger for the applicant absenting himself from the workplace was his understanding that the complaints made by two staff members about his behaviour towards them on 17 November 2021 had been accepted by the respondent, without him having been asked for his side of the story, and he was to receive a written warning.

[216] For the many weeks after 17 November 2021 through to 28 December 2021, the date he notified the respondent of his resignation, the applicant was absent on personal leave.

[217] At the commencement of this period of absence his partner on his behalf, in the email to the respondent on the evening of 17 November 2022, requested he not be contacted and stated his formal complaint can be discussed with him only upon his return to work and they felt that only through the Fair Work Commission will his complaint be dealt with in a “..non bias, …non-threatening fashion.”

[218] Thereafter by its actions the respondent respected these wishes of the applicant.

[219] On 25 November 2021, the respondent filed with the Commission and served on him its response to his Stop Bullying application. That response expressly confirmed that his formal complaint of bullying and harassment including the various other allegations emailed to the respondent on 17 November 2021 would be independently investigated. This restated what had previously been advised to the applicant’s partner on 19 November 2021. 28

[220] In the applicant’s formal complaint, he dealt with in detail his version of what had occurred on 17 November 2021 with the two staff at the workplace and that he understood from Mr Moss he would be getting a written warning. Consequently, having received the respondent’s response to his Stop Bullying application on 25 November 2021 he also then knew that the events of 17 November 2021 were to be independently investigated.

[221] Thereafter, the developments concerning his employment were that the Commission on a number of occasions listed his Stop Bullying application for a mediation conference and the applicant then requested the conference be delayed to a later date. The Commission agreed to the first adjournment and after his second adjournment request listed the mediation for a date in late January 2022. The respondent at no time objected to the applicant’s requests for adjournment.

[222] From the applicant’s subjective perspective, he had dealt with many difficulties in his workplace over a number of years. He had been in conflict with management over a range of issues where he had starkly different views from them. He had at times been spoken to harshly and inappropriately.

[223] Notwithstanding the fact that he had enjoyed the benefit of two discretionary pay increases he still felt his efforts were not properly recognised by his managers.

[224] He also had a troublesome relationship with some administration staff, although the evidence indicates criticism could be levelled both at the applicant and at these staff all of whom at times behaved poorly to each other.

[225] There is no dispute that the applicant resigned. The question is whether he was forced to resign because of the conduct, or a course of conduct engaged in by the respondent.

[226] In the matter of Neil Ashton v Consumer Action Law Centre [2010] FWA 9356 at [59] Commissioner Bissett explained as follows,

“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”

[227] There is no evidence that supports a finding that the respondent engaged in conduct with the intention of bringing the applicant’s employment to an end.

[228] The applicant had made a Stop Bullying application to the Commission. At the applicant’s request the proceedings were relisted to later dates. When the applicant resigned, he was aware that the first mediation conference was to be held in January 2022.

[229] The respondent had applied no pressure for him to return to work. It had not opposed his adjournment requests.

[230] The applicant knew the respondent had committed to an independent investigation of his complaints and had advised the Commission of this.

[231] The applicant’s evidence at hearing was that he fully intended to return to work once the complaints he had made to the company and to Fair Work were resolved. He expressly states this in his formal complaint on 17 November 2021. He says he believed however that from the company’s standpoint that couldn’t and wouldn’t happen. He believed he was being pushed out of the company. 29 This was the subjective view he had later formed. The evidence does not objectively demonstrate that this was the case however.

[232] Whilst the applicant was clearly unhappy at work and this had negatively affected his mental health the circumstances, considered objectively, were not such that the respondent’s conduct meant the applicant had no effective or real choice but to resign.

[233] With respect to concern for his mental health, at the time he resigned he had not been required to attend for work for a number of weeks and there had been minimal contact with the applicant during his absence further there was no suggestion the respondent was expecting him to attend the workplace in the near future.

[234] His decision to resign appears to have been based triggered in part by on his subjective perception that the respondent wouldn’t allow him to return and that he was being pushed out of the company.

[235] The timing of the applicant’s resignation is inexplicable. Perhaps the applicant had simply decided to take his treating doctor’s advice to leave the workplace. The Commission notes the applicant first saw the clinical psychologist on 14 January 2022, after he had resigned. 30

[236] Rather than resigning, the applicant obviously had the option of participating in the Commission’s mediation conference, which he had initiated, and which he previously considered an unbiased and non-threating process. He could see if the mediation assisted him with the complaints he had about his workplace. A second option he had was to, when his health allowed, participate in the independent investigation the respondent had advised they would conduct into his formal complaint.

[237] Instead of doing either of these things, the applicant resigned.

[238] In all the circumstances here, the Commission is not satisfied that the applicant had no effective or real choice but to resign because of the conduct or a course of conduct engaged in by his employer.

[239] Therefore, I find that the applicant was not dismissed within the meaning of section 386 and as a consequence of section 385, by definition the applicant cannot have been unfairly dismissed.

[240] The Commission will now dismiss this application and an order to that effect will be issued in conjunction with this decision.”

Rossbridge v WA Composts Pty Ltd (2022) FWC 3089 delivered 1 December 2022 per- Williams C