Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5583.htm

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Whilst this matter was to determine whether the applicant resigned or was forced to resign, my focus will be on how the working of excessive hours led to (a) the employee resigned; and (b) how the Fair Work Commission considered this issue.

Background

The applicant:

  • Was employed by a wealth management company in the role of Business Development Manager. He worked for the company for nearly seven years.
  • Had a person that reported to him not performing, and despite his complaints to senior management, no action was taken. Each was making complaints against the other.
  • Was required to spend time doing the work of the poor performing employee in addition to his own duties. This amounted to his working more than 70 hours per week (including weekend, public holidays and annual leave.
  • Suffered health episodes stemming from these events including a panic attack.
  • Believed he had no choice but to resign his employment Given the impact the workplace and his working conditions were having on his health.

Findings

The Commissioner found that the respondent employer could have done better in investigating the complaints and finding ways to reduce the applicant’s workload. This is despite his employer giving him written assurance that:

“…hours should reflect a sensible work/life balance and the guide of 152 hours every 4-week cycle is what we should be aspiring to. From time to time business development roles require some out of normal hours activity and travel as you know, but my focus for all of my team is ensuring we are able to achieve our work goals in balance with our personal lives and enjoy flexibility accordingly where possible.”

In doing so, the commissioner found that the applicant was forced to resign and awarded him $45,990 (inclusive of superannuation), being four month’s pay.

Commentary

My advice is to start on the right foot: include a statement in the contract of employment that where the employee believes that they are working excessive hours, then they should bring it to their manager’s attention. In this case the applicant did just that.

But, having complained of the excess hours (apart from an email of assurance) nothing was actually done to alleviate the workload. If only, the employer had followed its own (see email comments) advice.