FWC rejects departed employee’s unfair dismissal application

FWC rejects departed employee's unfair dismissal application

FWC rejects departed employee’s unfair dismissal application

A worker has failed to convince the Fair Work Commission that her exit was the result of a constructive dismissal, and consequently, her unfair dismissal application has been rejected.

The female worker, ‘SZ’, commenced employment with Sydney Physiotherapy 1 Pty Ltd as a receptionist/support worker in July 2014 and was employed under the Health Professionals and Support Services Award 2020.

In March 2021, largely in response to the COVID-19 pandemic, SZ’s position became part-time, and her hours of work were reduced to 19.5 hours per week. In July 2022, her work hours were again reduced so that she was only working 6.5 hours per week.

This arrangement continued until 19 June 2023, when she provided her employer with a letter stating that she was resigning her employment. She continued to work at the business until 5 July 2023, when her employment ceased.

In evidence before Deputy President Thomas Roberts, Ms Z maintained that the letter of 18 June 2023 was not a voluntary resignation, but rather, she was forced to resign by her employer because he would not bring what she claimed was said to be a temporary reduction of hours to an end.

As a result of the reduced hours, she suffered financial hardship that left her no option but to resign.

The employer’s position was that the gradual reduction in hours had been agreed to by the employee and was the only viable option available due to the dire economic circumstances prevailing at the time. He maintained that there was no ‘forced resignation’ and that her letter was clear evidence of a voluntary resignation.

As noted by the Deputy President,

“Where it is alleged that an employee was forced to resign, the onus is on the employee to prove, by an objective measure, that they did not resign voluntarily and that the conduct or course of conduct engaged in by the employer forced them to resign”.

The Deputy President acknowledged the severe financial hardship that Ms Z faced as a result of her reduced working hours, as well as her lengthy and dedicated service to her employer. He also noted the support provided to her to seek alternate employment, or supplementary employment, by her employment.

Ultimately, as he concluded,

“In all of the circumstances, I do not consider that the Respondent’s conduct negated all choice for the Applicant such that she had no choice but to resign … In this case, the Respondent’s conduct up to the point of the Applicant’s resignation was equally consistent with that of an employer who was content for the existing arrangement to continue indefinitely rather than an employer who was inactive in an effort to force the Applicant to resign”.

After concluding that Ms Z was not terminated at the direction of her employer, the Deputy President dismissed the application.

Ms SZ v Sydney Physiotherapy 1 Pty Ltd (C2023/4194) 18 September 2023

For queries about resignations, terminations, 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: 388.0923

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