The question of whether an employee resigns or is dismissed is an important one, as it is only where an employee has been dismissed that they can bring an unfair dismissal claim.
The Fair Work Commission (“FWC”) recently heard a case where it ruled that an employer’s mishandling of an employee’s resignation and associated psychological injury meant that the employee had not resigned, but had been constructively dismissed. A constructive dismissal is essentially where an employee resigns in circumstances where they are forced to do so because of conduct engaged in by the employer. This constructive dismissal allowed the employee to pursue an unfair dismissal claim.
Background
The employee worked as a Customer Services Officer and was transferred between offices as part of a change in his role. However, he was not made aware of mould issues in the new office and experienced a respiratory illness as a result. The employee claimed that the respiratory illness caused significant distress, which was exacerbated by a bullying complaint and perceived lack of support from the employer during this process. The employee also had a range of grievances against his employer. Subsequently, the employee was certified as fully incapacitated due to psychological injury.
The employee lodged a workers’ compensation claim. However, while awaiting the outcome of the claim he had no income and he claimed this further impacted his mental state. The employer did not offer discretionary financial assistance to the employee during this time and the employee continued to contact, and be contacted by, his employer while he was off work.
The employee emailed a resignation to the employer which read erratically and detailed various grievances. The employer immediately contacted the employee’s doctor to confirm whether the employee was “sound of mind” to make the decision to resign. The doctor confirmed the employee had capacity and competency to make his own choices about work. There was no formal acceptance of the resignation by the employer and the employee commenced employment with another employer within a short period of time.
FWC findings
The FWC held the employee’s resignation read as erratic and a record of grievances rather than as clear intent to resign, highlighting the mental confusion the employee was suffering. The FWC found that in the circumstances the employer should not have accepted the resignation at face value, regardless of confirming capacity with the employee’s doctor.
The ongoing contact by the employer during a period of leave for total incapacity, combined with financial pressures and no clear support offered to the employee, created a difficult situation for the employee.
The FWC reiterated that constructive dismissal may occur due to a process failure. In this case, failure to provide financial support and to ensure adequate time to recover away from work culminated in the employee feeling a need to resign, and created a scenario that was harsh. Accordingly, the FWC found that the employee had been unfairly dismissed.
Tips for employers
Relying on a resignation which occurred in “the heat of the moment” will not usually be accepted by the FWC.
When an employee has resigned and they are under significant stress or pressure, it is important to follow up with the employee at a later time to confirm their intentions.
Managers and human resource teams should be trained in managing termination of employment so they can recognise scenarios that may lead to a constructive dismissal and minimise the risks.
Contact with employees who are on leave due to incapacity should be limited, even where the employee initiates the contact.
