Resources: Blog

FWC finds resignation warranted

Blog
|

May The Force Be With You

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour. In some cases, the parties will try and reach an amicable solution to end the employment relationship such as agreeing to allow the employee to resign.

However, employers must be careful when entering into these types of discussions. The way in which an employee’s employment is finalised could have a significant bearing on that employee’s entitlement to make certain claims, such as unfair dismissal.

When faced with claims of unfair dismissal, one of the jurisdictional objections available is that the termination was not at the initiative of the employer (i.e. the employee resigned). The question of the employer’s initiative becomes murky where the resignation is given in response to the employer saying – “You should resign. We are going to fire you if you don’t.”

An employee will be taken to have been forced to resign (and therefore constructively dismissed) if they can prove that the employer engaged in a course of conduct which forced the employee’s hand and had the intent of bringing the employment relationship to an end.

The Fair Work Commission (FWC) recently examined this type of scenario in Grundy v Brister and Co [2019] FWC 3242. In this matter, an employee had lodged an application alleging he was forced to resign from his employment as a Boilermaker and Welder, immediately after being advised that he was dismissed for serious misconduct.

The employee had been involved in a number of incidents over a period of six months which the employer considered to be serious misconduct. On each occasion, the employee had been verbally cautioned that such conduct was not tolerated in the workplace and that he could be dismissed for such behaviour.

Immediately following the last incident, the employer determined that the employee’s conduct was repeated and unacceptable, that it was disruptive and disrespectful, and that he had been warned not to repeat his behaviour but had carried on regardless. Accordingly, the employer arranged a meeting to advise the employee that his employment was to be terminated for serious misconduct.

After advising the employee that his employment was being terminated, the employer told the employee, while he was packing up his things, that it would offer him the opportunity to resign and would provide him with a positive reference. The employee accepted this and the employer drafted a resignation letter for him to sign.

On this basis, the employer raised a jurisdictional objection that the employee had voluntarily resigned.

In its decision, the FWC found that the employer had forced the employee to resign and that the employee was therefore constructively dismissed. In coming to this decision, the FWC noted that the resignation had been an idea that was conceived and advanced by the employer. It also noted that the resignation letter had been prepared by the employer and was agreed to in circumstances where the employer had already dismissed the employee and that the dismissal would have stood if the employee had not agreed to resign.

Despite this finding, the FWC made no criticism of the employer in bringing about the resignation. It considered this to be the employer’s recognition of the employee’s past contribution to the business and an acknowledgement of the harsh consequences of the dismissal.

The FWC was then required to determine whether this constructive dismissal was unfair. It found that it was not unfair. In doing so, it noted that the employee had been dismissed because of a pattern of insubordination. This pattern was characterised by abuse and swearing at managers and other people in the workplace, a threatening attitude and an indifference to the consequences of that behaviour.

The FWC acknowledged that there were procedural failings in the employer’s approach to the dismissal but that this did not outweigh the seriousness of the employee’s misconduct.

The FWC therefore dismissed the application.

Lessons for employers

When negotiating employee exits, employers must remember that a negotiated resignation will not always protect an employer from subsequent claims of unfair dismissal. For this reason, employers must ensure that there are valid reasons for dismissing an employee and that procedural fairness is afforded to the employee at all stages of the disciplinary process.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Employee fails in bid to have safety-related dismissal found to be unfair

Garbage in, garbage out

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable.

Read more...

Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

Pick up the phone

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

Read more...

Full Bench quashes order to reinstate labour hire employee to host employer

Host with the most

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms.

Read more...

Court fines PCBU $60,000 for failing to re-assess the risks associated with changing site conditions

Set and forget

Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others.

Read more...

Employee fails in bid to have safety-related dismissal found to be unfair

Garbage in, garbage out

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable.

Read more...

Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

Pick up the phone

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.