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Ignoring complaints of overwork could make an employee’s resignation a dismissal

By Charles Power on November 4th, 2019
  1. Industrial Instruments
  2. Fair Work Act

You will dismiss someone for the purposes of unfair dismissal laws if they are forced to resign because of your conduct or a course of conduct engaged in by you.

The test is whether your actions result directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.

Just because your conduct was a factor in your employee’s resignation does not mean the resignation amounts to a dismissal. For example, if you reject an employee request for a pay rise and the employee becomes disgruntled and resigns, this is not dismissal. This is despite the fact your actions have at least consequentially resulted in the resignation.

Your conduct must have been the principal contributing factor in the resignation. You must have engaged in some conduct that intended to bring the employment relationship to an end, or had that probable result.

In Sathananthan v BT Financial Group Pty Limited (2019) the Fair Work Commission (FWC) had to consider whether the resignation of a business development manager was a dismissal. This would be the case if, objectively, the actions of the employer had that probable result, with the employee having no effective or real choice but to resign.

The employee was regularly working in excess of 70 hours a week. He complained of overwork more than a year prior to his resignation, indicating that he had serious concerns he may not be able to cope with the workload and that a major episode could occur.

The employer implemented some measures to provide support but did not fundamentally address the employee’s excessive working hours. The employee’s working hours were objectively unreasonable in the context of that position and the reasonable expectations of the parties.

The FWC observed that the employer failed to recognise or deal with the employee’s legitimate concerns about his working hours and those aspects of his allegations impacting upon or involving working relationships and conduct.

The FWC did not consider the fact the employee gave and served out his notice was not of itself indicative that he had no choice but to resign. During and at the end of the notice period, the employee did communicate to management that he considered that he was forced to take the step of resignation due to the impact upon his health and wellbeing.

The FWC ruled the employee’s resignation was the probable result of the employer’s conduct in the context and circumstances faced by the employee.

The combination of the excessive working hours and the absence of any real recognition of this issue or steps taken by the employer to manage this, combined with the absence of any indication the employer intended to investigate or deal with those conduct matters raised by the employee that were capable of directly impacting upon the workplace, are particularly influential in the assessment as to whether that resignation was forced.

Do you know what other factors can make a resignation unlawful?

Find out in chapter R3 Resignation in the Employment Law Practical Handbook on Portner Digital.

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