Even when an employee tenders a resignation they still have an avenue to claim unfair dismissal due to ‘Constructive Dismissal’ or forced resignation. A recent case has clarified the hurdles such claims have to clear in order for a resignation to be categorised as an unfair dismissal.
Case Review
In a recent case in the Fair Work Commission an employee, who was a duty manager at a hotel, argued that she was unfairly dismissed, despite her formally resigning, because she believes she was forced to quit due to a campaign of bullying against her, over a 9 month period, and a toxic workplace.
The worker claimed that the bullying campaign included the other duty manager repeatedly telling her that nobody wanted to work with her and stated that “everybody hates you” and that she believes that someone added laxatives and bbq sauce to a chocolate milk she made for herself, resulting in 4 days of illness.
The worker outlined that following the drink spiking she made a complaint to the police and went on stress leave.
The worker put her formal resignation in when she received a roster that showed she was not rostered on the day after her current stress leave medical certificate expired.
In evidence to support her claim of ‘forced resignation’ the worker outlined to the Commission that she had covertly recorded staff bullying her and when she approached her manager about the “staffs lack of respect” towards her he refused to listen to the recordings and commented to the effect that the staff don’t respect anyone. She further outlined that following the drink spiking incident the manager ignored her concerns and her.
In its defence the business was able to demonstrate that the manager had treated the drink spiking incident seriously, had investigated, reviewed CCTV and checked all syrup dispensers for evidence of tampering as well as interviewing staff.
To the claim that the worker was effectively dismissed because she was not listed on the roster the day of the end of her current stress leave certificate, the business argued that the reason the worker was not rostered on to work after going on stress leave was because she was yet to provide a return-to-work certificate.
In making the ruling Fair Work Commission Deputy President Lake clarified that in order to prove constructive, or effective dismissal cause the end of the employment relationship, and not the resignation of the employee, the worker had to prove more than the fact that there was conflict in the workplace, the worker had to prove that the business itself created or facilitated a toxic work environment in which any reasonable person would feel forced to resign.
DP Lake outlined that while there was clearly conflict in the workplace, and that if the drink spiking incident did actually happen it is not funny, innocent or a prank, but that the business response to it was appropriate in the circumstances.
To the insistence from the worker that the business failed to treat her claims of bullying seriously because it would not review her covert recordings of staff being disrespectful DP Lake noted that not only did the covert recordings raise legitimate privacy issues for the business it was also unreasonable to suggest the manager should have listened to the 304 hours of recordings at a minimum in terms of response.
Critically DP Lake noted that the worker also never made a formal complaint about being bullied after specifically being told to and being trained on the venue’s grievance and dispute policy, and after her medical certificates expired she made no attempt to reach out to the venue about returning to work, she just resigned and had simply assumed she was being forced out, and “exercised a choice to resign, as a result of interpersonal conflict in the workplace” and therefore was not entitled to make a unfair dismissal claim.
Learnings for all businesses
This case is a clear reminder to all businesses to treat all bullying claims seriously and to document the investigation in real time, as well as the responses. The final response in this case had not been made, but because the investigation elements were well recorded the business could defend the claim that it had not treated the claim seriously.
Another clear learning from this case is to ensure that the return to work process for any at work or out of work injury or illness is will understood, documented and followed. The requirement for the employee to present a Fit To Work Certificate before being added back into the roster was able to be shown by the business to be a clear process that was applied in multiple other cases, and backed up the business claim that the employee had not been effectively dismissed simply because she was not put on the roster as at the first day after the expiry of the current medical certificate.
Performance management process resignation…
Where an employee who is subject to performance management within the business, resigns rather than accepting the performance management process the business must still handle the resignation carefully, instead of rushing to process the final payment.
In these circumstances, when an employee resigns, even if the resignation is in writing and states a reason other than the performance management, it is important for the business to acknowledge the fact that the employee had been subject to reasonable performance management activity at the time;
“the business acknowledges your right to withdraw your labour and notes that you have indicated that you are resigning due to family pressures, however it also notes that this resignation has been received while you were subject to formal performance management activity aimed at explaining breaches in policy/performance and providing clarification of expectations of the business.”
This ensures that it is clear that should the employee have not resigned there were serious issues to be addressed. This is important not only for addressing resignation hesitation, but also for adding context to any claim that comes from a later unfair dismissal claim to reinstate the employee.
Get it in writing…
It is important for all businesses to understand that when an employment relationship is ended there are requirements for documentation and communication that are equivalent to the beginning of an employment relationship. When the employee is resigning this is just as true as when the employee is terminated.
When an employee tenders their resignation the business should seek such resignation in writing and should endeavour to capture within that documentation process the reasons for the employees resignation. In most cases this is not a problem, as employees will often tender resignation in writing and will provide, as a matter of course, a reason for their resignation within that document; “I have secured employment elsewhere”, “”I am moving out of the area”, “I am going to care for a family member” etc.
Upon receiving a resignation the business should confirm receipt of the resignation, confirm the process for final payments, entitlements and the return of property and other business matters and should do so in writing. This communication should also reflect back to the employee the businesses understanding of the reasons for resignation; “it is understood that you have secured other employment, the business thanks you for your service and wishes you well in your future endeavours”.
However, when the resignation is tendered verbally, and the employee resists polite requests to tender the resignation in writing, the business should still undertake to document the resignation by sending the employee an Acknowledgement of Resignation.
This Acknowledgement should note; the method of resignation, the reasons that were given at the time and the fact that a request for written resignation has not been forthcoming but respecting the employees right to withdraw their labour the business has accepted the verbal resignation.
In most cases this process of accepting the resignation of an employee will end here, final payments will be processed and the business will move on with focusing on engaging staff to fill the gap left by the departing employee.
Remember they can ‘take it back’…
When a resignation is received, in writing or verbally, in some cases the employee may seek to retract their resignation. The question for businesses then is often, is that allowed.
The short answer is, sometimes. It has been demonstrated in many cases before the courts that resignations made in the “heat of the moment” can be taken back in some circumstances and that businesses should be certain to provide a process to ensure that positions are not filled too hastily, as a retraction could be issued.
Some circumstances will result in a resignation not being considered valid, creating a situation where the employer must take the employee back on. This is most common with verbal resignations, communicated after a performance counselling session, or an incident at work.
When an employee resigns under pressure of a situation there is reason for employers to ensure they are following due process before closing the employment file or recruiting for additional staff.
Final is Final…
To ensure that the business can satisfy its staffing needs employers need to treat all resignations as tentative until:
- Resignation has been received in writing;
- A final date of work has been nominated or negotiated; and
- Resignation has been acknowledged by the businesses in writing and delivered to employee.
Only after these thing have happened can the business put together final payments with any entitlements and begin recruiting for a replacement.
It is important that businesses tick all of these boxes before closing the employment file. As demonstrated in a recent case (Minato v Palmer Corp) an employee told their supervisor to “shove the f**ing job up you’re a***”, and due to the lack of written confirmation on either part the employee then brought an unfair dismissal case.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
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