FWC dismisses claim terminated employee forced to resign

The Fair Work Commission has rejected an unfair dismissal application from a long-term employee who claimed that his resignation was due to a lack of support and poor treatment following an accident outside work, which gave him no choice but to resign.

The employee ‘MS’ commenced employment with Ticketek in 2007, and at the time his employment terminated in July 2023, he held the position of Customer Solutions Manager. In March 2022, he was involved in a traffic accident, which led to an absence from work for five months before commencing a graduated return to work.

From March 2023, he returned to work full-time, working one day per week in the company’s Sydney office and four days at home. On 18 April 2023, he emailed his line manager to inform her that he was travelling to South Korea the following week and would work the days he usually worked at home from a hotel room in Seoul.

The manager replied on the same day, advising him that a request for a change of work location would have to be submitted for approval.
On 20 April 2023, MS spoke to the Head of Ticketing concerning the approval. He was advised that several factors had to be considered, including whether his doctor had approved him to fly. He then sent an email with a clearance certificate outlining how he would safely perform his work.
The following day the Ticketing Manager emailed him and refused the request to work from Seoul. The refusal was due to concerns about how his absence would impact arrangements in the workplace, the lateness of the request, which should have been a request for paid leave, and failure to meet the usual arrangements for such requests.

On 24 April 2023, he attended the office on the day prior to his intended trip and was advised that his request was not approved. He was informed that his absence would be regarded as annual leave, with further discussions to be held upon his return. That afternoon, MS suffered anxiety and a panic attack.
He went to see his GP and was provided with a medical certificate indicating he was unfit for work for the period 24 April 2023 to 2 May 2023, and provided medical certificates deeming him to be unfit for work until 29 May 2023, and then subsequently, until 24 July 2023.
On both 6 July and 17 July 2023, Ticketek’s Group HR Manager contacted MS by email, indicating the company’s support for his situation and encouraging him to speak with her when he was up to it.

On 24 July 2023, MS forwarded an email advising that he was giving 4 weeks’ notice and terminating his employment contract. The email included the comments, “It is regrettable that I feel I have no choice but to end my career with Ticketek … based on the way in which I have been treated, the recovery from my accident has been set back considerably and my employment with Ticketek is no longer tenable”.

In reviewing the communications between the parties, Deputy President Tony Slevin rejected MS’s claims that the employer’s conduct forced him to resign. He accepted the employer’s decision to reject the request for him to work in Korea and the reasons given.

As he noted, “This cannot be said to be a resignation in the heat of the moment … While I have some sympathy for Mr (S’s) circumstances, I am of the view that those factors are not sufficient to find that the termination of his employment was at Ticketek’s initiative nor that Ticketek was required to enquire further before accepting his resignation. … The communications from Ticketek in the months that followed made no suggestion that Mr (S) would be treated adversely upon his return. They were supportive”.

Consequently, the application was dismissed.

MS v Ticketek Pty Ltd (C2023/5487) 14 November 2023

For queries about requests for flexible working arrangements, return to work plans, supporting long-term absentees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 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.
Ref: 479.1124