Full decision here.

Introduction

As confirmed in this decision, a resignation provided “in the heat of the moment” may not be counted, but instead be construed as a “constructive dismissal”. That is a “forced” resignation or put another way “Hobson’s choice”: resign or you will be sacked.

Background

This matter involved two casual traffic controllers who claim that their employment were dismissed, citing that they had not been allocated shifts despite previously working “regular and systematic” hours; that their employer failed to offer them prominent employment after six months of employment per the award; and not been paid correctly, also as per the award.

The company, in this matter was able to provide that it had in fact it had offered work via its usual method of SMS, and the applicants had simply not responded. In evidence it was found that the applicants were advised to “Please keep your phones close so we can give you work”, to which the applicant responded “Well if I see the call, I’ll take it. If I don’t I don’t”.

Whilst this is not the most complex matter I have read; it is instructional in terms of what the FWC considers to be the “test” in determining such matters:

In Bupa Aged Care Australia Pty Ltd v Tavassoli (“Bupa v Tavassoli”), a Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element”.(emphasis added).

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Finding

In dismissing the application, the Deputy President found that:

“The evidence was clear…the Respondent had not failed to provide either Applicant with continuing work. Quite to the contrary, the Respondent was seeking to allocate work to the Applicants. The Respondent even lead evidence from…the Staff Allocator, regarding the usual methods of allocation of work, and attempts to allocate work to the Applicants”.

Commentary

As mentioned, this is a relatively straight forward matter of wasting the FWC’s time, but let’s not forget the message that all resignations are not created equally. If an employee (for example) loses their temper and resigns, allow them time to cool off to (say) the next morning and contact them if they fail to attend for work and ask them “do you still stand by your resignation? If the answer is “yes” confirm this in writing.

If the answer is “no” a final written warning is warranted.