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Introduction

This decision concerns an unfair dismissal application contending a “forced resignation” (also known as a “constructive dismissal”). The applicant was a “customer assist specialist” with an energy retailer

Background

The applicant contended that he was forced to resign because, when in July 2020 the company directed him to work from home (in accordance with the COVID-19 restrictions), it refused to pay for or provide him with a home desk to enable him to do so, and also refused to allow him to work from the office or take six weeks’ leave.

The applicant’s job required him to use a computer and speak to customers on the telephone. On 16 March 2020, the company sent an email notice to staff stating that they were now encouraged to work from home because of the COVID-19 pandemic. On or around 1 April 2020, the applicant’s manager told him that the company could allow him to work in the office at present, but that he should start making arrangements to be able to work from home. The applicant replied that he had recently moved to a new house and did not have furniture, including a table or desk to work from. His manager suggested that he look at second-hand websites to procure one.

On 8 May 2020, the company sent an update to staff about working from home. Later that day, the applicant sent his manager an email message, stating that he did not have furniture in his house, and that he was under financial pressure due to medical expenses. He said that he was ill-equipped to work from home but that if the company would cover the cost of a desk, he would buy one. On 11 May 2020, the manager called the applicant and said that the company would not buy him a desk, but that he could continue to work from the office for the time being.

On or around 1 June 2020, the manager said to the applicant that he needed to “sort out arrangements” for working from home. The applicant replied that if the company could not properly facilitate his working from home, then his role was redundant. The manager told the applicant that redundancy was [ironically] “not on the table”.

On 7 July 2020, the Victorian government announced the reintroduction of stage 3 restrictions, which mandated that, where employees could work from home, they were required to do so. The same day, the company’s CEO sent an email to all employees stating that unless there was an urgent need to come to the office, they were to work from home. On 8 July 2020, the manager spoke to the applicant and told him that he was required to work from home. Later that day, an official of the applicant’s union sent an email to the company’s human resources manager, stating that the applicant had been directed to work from home without being provided with “the appropriate equipment necessary to carry out his work from home, namely a desk”. The union requested a dialogue with the company about the applicant either being reimbursed for the cost of purchasing a desk or being allowed to continue to work from the office.

On 9 July 2020, the HR Manager replied to the union, stating that in line with WorkSafe Victoria guidelines, the company was providing employees with all reasonable equipment and support necessary to work from home, including a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist, and online resources, but that the company would not be providing desks or reimbursement for purchasing them, as it was not fair and reasonable to do so. The union proposed that, as the applicant already had an ergonomic chair and laptop, the company could simply buy him a desk instead [hang-on, I thought he did not have any furniture?].

Contrary to the directions given on 7 and 8 July 2020, the applicant worked from the office on Friday, 10 July 2020. He then took leave on 13 and 14 July 2020. On Wednesday, 15 July 2020, the manager called the applicant and said words to the effect of “where are you at with getting a table?” as the applicant was not to continue working from the office.

Later that day the applicant submitted an application to take six weeks’ leave, commencing on Monday, 20 July 2020. His manager checked the leave calendar, and then advised the applicant that his request could not be accommodated.

On Monday, 20 July 2020, Mr McKean sent Mr Burnside an email stating: “I wish to advise that I am resigning from [the company] effective immediately. I will leave my computer and headset in my old locker, which I will keep locked and surrender my security pass to the front reception staff”. His manager replied to the email accepting his resignation.

Finding

The FWC found the applicant’s argument that he was forced to resign was “entirely without merit”, noting that applicant could have purchased a desk rather than resigning and that the applicant conceded that he has since purchased a table, stating that his position not to purchase a desk was a position of principle.

In dismissing the application, the Commission considered the respondent’s requirements for the applicant to work from home came nowhere near constituting an occupational health and safety risk or a contravention of the Occupational Health and Safety Act 2004 (Vic), noting that the respondent had provided adequate resources for employees to work from home as per Government guidelines. Concluding that it was reasonably practicable for applicant to buy himself a desk and that the request for six weeks leave was excessive and not unreasonably refused by employer; and ultimately determining that there was no forced resignation.