Did they resign or was it unfair dismissal?

Did you know that there are situations in which an employee can resign and it can be deemed a dismissal?  Sounds like convoluted word play I know, but it can then allow that employee to lodge an unfair dismissal with Fair Work!
 
What?
 
That’s right, an employee who resigns, in certain circumstances can lodge an unfair dismissal claim.  Let’s take a deeper look at this….

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In March 2019, a Business Development Manager at BT Financial resigned giving a month’s notice.  After working for BT Financial for seven years, he finished up with the business in April of 2019 after serving out his full one month notice period.  A couple of weeks later, the Business Development Manager lodged an unfair dismissal case with the Fair Work Commission which was subsequently upheld.  To be fair, it wasn’t as simple as that but that was the upshot of the 18 page decision that you are free to read here for the full version or read on for the summarised version.
 
The big head scratcher for most of us is how can an employee quit but still be able to claim unfair dismissal and win.  To understand this, we need to look at some of the lead up to the resignation.  The Business Development Manager had made a couple of complaints to his employer over a period of time prior to his resignation.  These complaints related to:

1. An excessive workload that amounted to working over 70 hours or more per week and he had made it clear that it was impacting his health and well being.
   
2. The poor performance of a supporting officer with whom he was required to work.
   
3. The fractured personal relationship with the aforementioned supporting officer (this occurred after a consensual romantic relationship between the two ended).
   
4. That his complaints about the supporting officer were poorly handled and not attended to seriously.  This was exacerbated by the fact that BT Financial had conducted two investigations into his actions that were made by the supporting officer that were largely found to be unsubstantiated.

The question the Fair Work Commission needed to address was whether or not BT Financial intended to cause the Business Development Manager to resign.  It was accepted that there was no such intention.  However, the Commission determined that BT Financial knew about the grievances summarised above and chose not to do anything significant that would have alleviated the Business Development Managers concerns.  Notably, the Business Development Manager was clear that he was submitting his resignation under duress so as to focus on his health and well being.    What this meant was that the Commission found that the Business Development Manager had “no effective or real option but to resign his employment” which meant it met the high threshold required to determine that this resignation was actually a “constructive dismissal.”
 
Right, so an employee who had no alternative but to resign can actually be deemed to be dismissed.   What’s the big deal?  In this case, it was $45,990 of big deal as once the Commission ruled it was a dismissal, they could then assess whether or not it was unfair and determine a remedy.    I guess I’ve given the ending away as you know the Business Development Manager received an award of nearly $46k but you should keep reading so you understand how the law was applied and how you can avoid being in this situation!
 
The Commission found that here were no valid grounds for the dismissal.  Having gone through a process that reviewed how BT Financial had handled the Business Development Managers grievances that led to the constructive dismissal finding, the Commission ultimately concluded that the dismissal was harsh, unjust and unreasonable and thus unfair within the meaning of the Fair Work Act 2009 (Cth).
 
What does this mean for you as an employer then?  It’s quite simple really.  Make sure you have grievance policies and processes in place, that they are well communicated and accessible to your team and importantly, they are followed when an issue is raised.  Deal with matters as they arise and attempt to find an outcome that resolves the issue for the employee but also protects your business.  Procedural fairness is an absolute must in these situations and will be a key consideration for the Fair Work Commission. 
 
Call the HR Staff n’ Stuff team if you need support to establish or revise your grievance policies or if you need assistance in investigating/resolving any employee issues raised.  Don’t let a small problem become a Fair Work decision.