By Mike Toten Freelance Writer
Was resignation forced or voluntary?
An employee who resigned following rejection of his pay rise request, and after he was offered another job, has unsuccessfully tried to claim that he was forced to resign. However, the Fair Work Commission (FWC) found that being dissatisfied with a management decision did not amount to being forced to resign.
Facts of case
The employee worked for a Federal Government agency on a temporary individual flexibility work arrangement (IFA) which paid him at a higher rate. When the IFA expired, he continued to be paid at that rate. He later applied for a pay increase of 15% above the standard rate, but only received a general 3% increase awarded to all employees a few months later.
The latter was included in a new IFA offered to him, but it also excluded a clause covering time off in lieu which applied under the general enterprise agreement at the workplace. He did not sign the new IFA.
The employee was later offered a job for nine months with another employer, and took leave without pay to fill it. He then returned to the original employer, but said that he intended to resign because he expected to be offered another job with a private sector employer. He arranged to take six weeks of accrued leave to cover the period up to his intended resignation date. On the day of advising that he would soon be resigning, the employer told him that the basis for his IFA would cease that day. A month after that, he resigned, giving 14 days’ notice.
On the day he gave notice, he claimed that the employer had repudiated his employment contract, giving him no option but to resign, because of:
- The way it handled his requests for a 15% pay rise and reimbursement of some work-related expenses
- The “disrespectful and belittling” content of a recent conversation with his manager
- Its decision to discontinue his IFA
The employee claimed he had been constructively dismissed and lodged a general protections claim.
Decision
The FWC rejected the employee’s claim, finding that he had voluntarily resigned. He had initially accepted the employer’s offer, before notifying two weeks later that he would resign, and giving actual notice to resign about a month later. He had also told the employer that he intended to accept the job offer from the other employer, one month before he actually resigned.
His IFA had always been a temporary arrangement, and the employer could decide whether or not to continue it.
What this means for employers
This is another case where a dispute arose because the two parties did not make their intentions sufficiently clear to each other. It illustrates the need to carefully study the context and time frame when determining whether a “resignation” could be a “dismissal”. If an employee is dissatisfied or believes he/she was mistreated, that alone is not sufficient to prove that he/she was forced to resign.
