Ms Dawn Harrison v Crawford Realty Karratha Pty Ltd T/A Crawford Realty Karratha (U2014/4131) [2014] FWC 6930 COMMISSIONER CLOGHAN

In short, this matter involvement a real estate agent and the journey of shifting of the “goal posts” which finally led to the “resignation”. The Commissioner found in the Applicant’s favour – awarding her $35, 026 plus other statutory entitlements.

The Commissioner considered:

 “386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so (my emphasis) because of conduct, or a course of conduct, engaged in by his or her employer.

And (amongst other citations):

“In ABB Engineering, the Full Bench said that:

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

Commentary

We should be aware of the “resign or be sacked” scenario has been writ in stone for decades as “constructive dismissal”. As always, these “easy outs” are tested by the FWC and the outcome is usually in favour of the employee.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

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