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Introduction

What happens when an employee refuses to undertake duties that they consider “beneath their station” and the employee resigns? Then the employer moves the resignation date. “Unfair and unreasonable” says the FWC.

Background

In this matter, the applicant was employed as a hospital data manager from mid-March 2020. However, despite his position description providing that the applicant undertake data entry work he refused.

Meetings were held with human resources and senior management; the applicant was formerly directed to undertake the data entry work.

This resulted in the applicant tendering his resignation subject to a condition that he first be allowed to take his accrued leave, wanting his resignation to be effective from 1 June but with the date adjusted for his annual and long service leave which may take the date up to December 2020.

The respondent explained that it could not accommodate this request and that termination would be effective from 1 July 2020, whereupon he would receive a payment of his termination entitlements.

The applicant submitted that he only offered to resign on the condition that he take all of his accrued annual and long service leave, from 1 June 2020, such that his employment would not end until late 2020 or early 2021. The applicant further submitted that he did not agree with the resignation date of 1 July 2020 and that by insisting upon a termination date of 1 July 2020, the hospital terminated his employment and that his dismissal was unfair as there was no valid reason for him to be dismissed.

The respondent submitted that it had accepted the resignation despite the extension of the resignation date to 1 July 2020, so that the applicant could receive more favourable tax treatment. In doing so, the respondent argued that the change of date did not affect the essential character of his resignation or on the other hand, the dismissal was not unfair, because the applicant had chosen to resign rather than perform all of the duties of his position as required.

Finding

The FWC found that it was clear from email correspondence the applicant was proposing that from 1 June 2020, he would take all of his leave, and that his resignation would be effective on the date his leave expired. Further noting the respondent processed the termination of applicant’s employment with effect from 1 July 2020 which was clearly against the applicant’s wishes and therefore the applicant’s employment was terminated at the initiative of the hospital.

In finding the employee was in fact dismissed and did not resign, went on to determine that there was no valid reason for dismissal nor was the applicant notified of the reason for dismissal or given any opportunity to respond; and that the dismissal by the respondent was unreasonable, and therefore unfair.

Outcome

The Commission considered what if any remedy should be awarded.

The FWC noted the applicant resigned from his employment rather than agree to comply with the direction of the hospital that he undertake the data entry component of his role as data entry manager and considered were the applicant to be reinstated, the requirement that he undertake all relevant data entry would likely remain a bone of contention between the parties.

There was no basis for a legitimate dispute because an employee must simply perform all of the duties of his or her position and that upon reinstatement, the applicant would want to take a substantial amount of leave and proposed that he be treated as having been on leave between the end of his employment and his reinstatement.

The FWC also noted the applicant’s “particular expectations about the modalities of taking and being paid for leave upon his reinstatement, some of which appear to be unworkable, tells against a conclusion that reinstatement is appropriate, because it begs the question as to what will occur if, as seems likely, the hospital rejects some or all” of the applicant’s proposals.

The FWC decided that it would be inappropriate to reinstate applicant and ordered compensation equal to the “remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed”. In this case, the Commission’s best estimate had applicant not been dismissed he would have remained employed for a period of nine weeks beyond the date on which his employment with the respondent ended – the amount of $6,919.45 with deduction of taxation required by law.