By Gaby Grammeno Contributor
The worker was employed as the marketing manager with an Australian-based technology and software company engaged in developing AI solutions for business.
Her direct supervisor was not satisfied with her work performance and in May 2024 he spoke to her about it over the phone in an aggressive tone that distressed her.
Several weeks later, the supervisor sent a draft ‘performance plan-type document’ to the CEO for discussion. The draft plan was highly critical of the worker’s performance but did not appear to contain any kind of plan to help her overcome the perceived shortfalls.
On 3 June the CEO met with the supervisor to discuss the marketing manager’s ‘upcoming performance review’ as well as another staff member’s complaint about the supervisor.
Following this meeting, another individual described as the CEO’s ‘close friend’ and ‘right-hand man’ saw the email with the draft performance plan for the worker and took it upon himself to speak to her about it. She later alleged that he ‘spent 20 minutes trying to convince her to resign’ and said ‘I was wondering if you had another job in mind that you could go to’.
Later the same day, the CEO had a conversation with the worker that upset her and led to her sending an email indicating that she’d resigned.
On 21 June 2024, the worker applied to the Fair Work Commission under s.365 of the Fair Work Act 2009, claiming that she’d been sacked and that the dismissal contravened the general protection provisions of the Act.
In the Commission
The worker alleged that in that last conversation with the CEO, before she sent the email resigning, he’d told her he ‘wanted to give her the opportunity to resign’ and that ‘this was her last day’.
The employer objected that the worker had not been sacked, she’d resigned of her own free will after he told her about her upcoming performance review.
The Fair Work Commission’s task was to decide if the worker was actually dismissed from her employment.
Under the Fair Work Act, a person has effectively been dismissed if they’ve been given no choice but to resign – forced by ‘the conduct or a course of conduct on the part of the employer’.
It may also count as a dismissal if the worker expresses a decision to resign, but the ‘resignation’ is made 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’.
A ‘heat of the moment’ resignation may count as a dismissal 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’.
After considering the evidence, Deputy President Michael Easton noted that the worker and the CEO gave very different accounts of the ‘crucial conversation’ on the evening of 3 June, and it was a difficult task to resolve the factual dispute about the nature of the conversation. ‘On balance’, however, after considering the context of the interactions between the worker, the CEO and the supervisor, he preferred the worker’s version of what was said.
‘When [the CEO] said the words “I assume [the right-hand man] has spoken to you”, and when he said the words “I want to give you the opportunity to resign” and also “this is your last day”, [the worker] had no effective or real choice but to resign,’ he said.
Deputy President Easton was satisfied that the CEO spoke to the worker with the intention of bringing her employment to an end. He found that the worker was an employee who was dismissed in terms of the Fair Work Act and that she was entitled to claim unfair dismissal under the general protection provisions of the Act.
A conference will be convened to deal with her application against the employer.
What it means for employers
Employers need to be aware of the general protection provisions of the Fair Work Act, which set out workers’ basic rights, including the right to correct pay, leave and other entitlements, the right to be in a union or not, take sick leave, complain or enquire about working conditions, and benefit from an industrial law or award or enterprise agreement. These rights also protect workers against unfair discrimination.
Employers who contravene the general protection provisions may find themselves facing adverse action claims, including unfair dismissal, and may be ordered to compensate the worker.
Employers wishing to dismiss a worker need to be sure they’re following proper procedures. Giving a worker no choice but to resign is an option that will put the employer in the wrong.
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