Resignation or Termination?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker (housekeeper) claimed she was unfairly dismissed after raising concerns about her workload and feeling underappreciated, while the employer maintained she had voluntarily resigned.
The dispute began when the employer raised concerns about a stained carpet not being cleaned, which triggered an emotional response from the worker who had been feeling overworked. Further text messages exchanged after this initial incident showed the worker professionally raising concerns about her workload, with the employer suggesting she take time off. The employer became disgruntled with the worker stating she had "turned into a wife" and questioned "what right they had had to be doing this?"
The situation escalated to a meeting where the employer told the worker: "You need to agree with me 100% of the time. Can you agree with me?" When she replied she couldn't, he stated: If you can't agree with me, you can’t work for me. If you are not going to agree with me, you are resigning." The employer then sent a text message attempting to document her resignation, which she immediately disputed.
The FWC had to determine whether the worker was dismissed and applied principles from previous cases about distinguishing between voluntary resignation and dismissal at the employer's initiative.
A key piece of evidence reviewed by the FWC was an email exchange immediately after the meeting where the employer had written: "I understand that you do not wish to continue with the role due to the overwhelming nature of the job." where the employee promptly responded: "At no time did I resign. I simply expressed my concerns about the workload being beyond what I could reasonably handle and noted that I lacked the necessary training to meet all the expectations of the role."
The FWC stated that the employer dismissed the worker because she raised concerns about her workload. The FWC also found the employee was not notified of any reason for dismissal before it occurred and it was unreasonable that she was not given an opportunity to respond to the dismissal.
Reinstatement was not sought as the relationship had "irretrievably broken down." The Commissioner then had to calculate compensation which was based on four weeks’ pay ($3,840 plus superannuation).
In summary, the FWC established employers cannot characterise a termination as a resignation when the worker immediately disputes this characterisation. Furthermore, the case also adds raising concerns about workload does not constitute misconduct justifying dismissal.