Unfair dismissal cases based on resignations

The Fair Work Act provides that a person is to be regarded as having been dismissed if either the person’s employment with his or her employer has been terminated on the employer’s initiative OR the person resigned from his or her employment but was forced to do so because of conduct or a course of conduct engaged in by his or her employer; see sec 386(1).

It is from this statutory context (sometimes called a legal fiction) that the doctrine of constructive dismissal is enshrined in the Act. However it is very difficult to persuade the Fair Work Commission that a resignation by an adult person, by and large presumed by the law to be responsible for his or her destiny, or her constitutes a dismissal. This extract from a recent case shows just how difficult the presumption is to dislodge.

“Consideration

[16] In light of these findings, I now consider Ms Lovett’s contention that she was forced to resign by the conduct of the Department.

[17] In Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, a Full Bench of the Commission considered the authorities on resignation and their application to s 386 of the Act, and concluded that, in considering whether a resignation is ‘forced’ for the purposes of s 386(1)(b), the test 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.’ (at [47])

[18] Ms Lovett presented several arguments in support of her contention that she was forced to resign. First, she said that she had in effect been required to perform two jobs during Mr Chatfield’s absence on secondment, and that this gave her no choice to but to resign. I reject this contention. Ms Lovett was not required or expected to do two jobs. She was required to do her own job, which involved travelling around the WSW area, including to Warrnambool.

[19] Secondly, Ms Lovett submitted that her job, or her contract, had been changed without her knowledge, because she was required to work as the only liaison officer in Mr Chatfield’s absence, and in particular to service the Warrnambool area alone. In fact, Ms Lovett’s job and contract remained the same. She was employed as a liaison officer for the WSW area. The substance of her duties had not changed. The position description plainly states that the location of the role includes Warrnambool. She was required to service the entire region.

[20] Thirdly, Ms Lovett submitted that it was unreasonable of the respondent to require her to shoulder the burden of travelling to Warrnambool during Mr Chatfield’s absence. I reject this submission. Ms Lovett’s evidence was that throughout the period of Mr Chatfield’s secondment she was required to make only several additional trips to Warrnambool beyond what would otherwise have been required. I do not consider this to have been an onerous requirement. It was certainly not a consideration that gave Ms Lovett no choice but to resign.

[21] I find it difficult to see how in the circumstances of this case Ms Lovett could genuinely have believed that she had no option but to resign. If she did hold this belief, I consider that there was no sound basis for it. The question of whether a person has been forced to resign is to be considered objectively. Even if it were accepted that Ms Lovett’s workload and travel requirements had increased significantly and become unreasonable (which is not the case), the obvious first option for Ms Lovett would have been to discuss the problem with the employer and try to resolve it. But Ms Lovett did not seek to discuss and resolve her concerns. She did not ask for assistance. She did not respond to Ms Miller’s letter of 5 May 2021, which gave her an opportunity to reconsider her resignation. Further, it must be remembered that Mr Chatfield’s secondment was to last a further six weeks and would not be renewed. Whatever difficulties Ms Lovett had been experiencing, they were temporary.

[22] Ms Lovett said that the job she was expected to perform during Mr Chatfield’s absence was not the one that she applied for, and that no one had asked her whether she agreed to be the only liaison officer servicing the WSW. I accept that Ms Lovett may not have expected to be working as the only liaison officer for the region, and that she was disappointed that Mr Chatfield’s secondment was extended without a replacement being found for his position. But Ms Lovett had no legal right to have a second liaison officer working with her. And the Department’s requirements of her during the period of the secondment of Mr Chatfield were reasonable. On no view of the facts could it be said that Ms Lovett’s resignation was the probable result of the employer’s conduct, or that Ms Lovett had no effective choice but to resign. And it is not the case that the respondent intended to bring the employment to an end. On the contrary, at the meeting on 4 May 2021 Ms Miller encouraged Ms Lovett to reflect on her decision to resign, and Ms Miller’s letter of the following day effectively invited Ms Lovett to reconsider the decision. It was Ms Lovett’s choice to resign. She was not forced to do so.

Conclusion

[23] Ms Lovett resigned of her own volition. She was not forced to resign because of the conduct of the respondent, nor was she dismissed on the initiative of the employer. The respondent’s jurisdictional objection is upheld and Ms Lovett’s unfair dismissal application is therefore dismissed.”

Passage from Lovett v Department of Education & Training 2021) FWC 4581 delivered 29 July 2021 per Colman DP