Employees must exhaust all processes before resignation

Employees must exhaust all processes before resignation

A nurse has failed in her attempt to convince the Fair Work Commission that her resignation was effectively a constructive dismissal resulting from sustained workplace bullying resulting in a ruling by Deputy President Ingrid Asbury that she had not been terminated and therefore could not pursue an unfair dismissal claim.

The nurse had been employed by Ramsay Health Care (the Employer) as a Registered Nurse at the John Flynn Hospital on the Gold Coast from her commencement on 1 July 2009 until she resigned her employment on 28 January 2021. She contends that she was constantly bullied by her manager, the Assistant Director of Clinical Services (Ms B), leaving her with no option but to resign (hence, the `constructive dismissal’ claim).

At hearing before the Deputy President, she identified a number of incidents that she claimed demonstrated RB’s bullying of her. These included:

1.      Removing her from a committee;

2.      Perceived conflicts of interests as several members of management were related biologically or through marriage;

3.      Favouritism through the selection of a particular staff member to relieve in Ms B’s position whilst on leave; and

4.      Changing the reporting structure from her contract of employment.

At the hearing, the nurse claimed, “in early 2020 she began noticing a change in (Ms B’s) behaviour towards her which took the form of ignoring, belittling and making decisions that made it difficult for the Applicant to carry out her role”.

Certainly, Ms B did have concerns with the nurse. After several meetings, she wrote to her on 22 January 2021 regarding suggestions the nurse had not been undertaking required competency checks as part of her role. She was requested to attend a meeting on 28 January 2021 to discuss the matter. However, she instead chose to write a lengthy email to the Hospital CEO on 24 January 2021, raising concerns with Ms B in particular.

After receiving a response encouraging her to raise her concerns at a rescheduled meeting, she tendered her resignation to the CEO via email on 27 January 2021.

Deputy President Asbury noted, “Much of the Applicant’s evidence is subjective and is based on perceptions about her treatment. I do not doubt that the Applicant has a strong belief in the righteousness of her position, and I accept that the Applicant is entitled to ventilate that position”.

However, the Deputy President denied the application stating,

“resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options before resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant … 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”.

Consequently, the application was dismissed.

CO v Ramsay Health Care Australia Pty Ltd (U2021/1346) 6 August 2021 

For questions about managing performance, terminating employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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