Merv Saltmarsh ARTICLE
A FINE LINE: APPLYING PRESSURE TO RESIGN IN THIS ARTICLE, THA’S EMPLOYMENT RELATIONS - BUSINESS IMPROVEMENT MANAGER MERV SALTMARSH EXAMINES AN UNFAIR DISMISSAL APPLICATION WHICH HIGHLIGHTS THE FINE LINE EMPLOYERS MUST BE WARY OF WHEN DEALING WITH POLICY BREACHES.
In a single member decision, Fair Work Commissioner Bruce Williams deemed an employer’s actions in dealing with a disciplinary matter were inappropriate, but decided against reinstatement as it was found the employee made a decision of his own accord to resign. BACKGROUND In this case, Robert Tiller v Relationships Australia Western Australia Inc [2018] FWC 5519 (4 September 2018), the employee allegedly breached social media policy with a Facebook posting of a newspaper article challenging the notion domestic violence was not gender neutral. The employer alleged supporting the article was “not only wrong but dangerous” given the employee was involved in counselling both men and women. When called to a meeting with management, a colleague who the employee elected to have attend as a support person was on leave, but the meeting proceeded nevertheless. At the conclusion of the meeting, the chief executive asked the employee: “Where do we go from here?” This prompted the employee to volunteer his resignation. In his unfair dismissal application, the employee said that during the meeting he felt he had to resign as a result of the employer alleging, he had committed a serious breach. This was rejected by Commissioner Williams. The chief executive did not say to the employee he would be given the opportunity to resign in a bid to protect his professional reputation, it was found. It was also not communicated that the employee’s employment would be terminated, nor would he be dismissed if he did not resign. Commissioner Williams heard that the day following the meeting, the parties discussed the differences between him being dismissed and resigning. The employee subsequently provided a written resignation letter, but contended it was under coercion because of the conduct of the employer during the meeting.
THE DECISION In determining whether the employee’s resignation was under coercion, Commissioner Williams said he simply could have waited to see what the employer did about the situation before resigning. “If (the employee) had not resigned after the meeting perhaps an approach other than dismissal might have been considered by (the employer),” Commissioner Williams said. “Considering what occurred there is no evidence that there was an ultimatum given to (the employee) during the meeting that he would be dismissed if he didn’t resign or that he should resign in order to preserve his professional reputation.” It was ruled that whilst understanding his employment was “precarious”, the employee was not forced to resign, but voluntarily exercised a choice to do so. Commissioner Williams dismissed the unfair dismissal application. IMPLICATIONS FOR EMPLOYERS Employers must be wary of the fine line between forced resignation and, in the context of serious allegations, subtly suggesting an employee make a decision regarding ongoing employment. In deeming the employer in this case to be treading that line and not following proper procedure, Commissioner Williams noted that if the employee had not resigned then it was likely he could have succeeded in an unfair dismissal case. Cases such as this are finely balanced and it is recommended employers seek guidance before taking disciplinary action. Ideally, if the allegations are indefensible, these should be advised comprehensively to the employee both prior to, and at the disciplinary meeting. Any pressure to resign should be avoided, instead allowing the employee to make their own decision free of perceived coercion. For further advice about themes covered in this case summary, feel free to contact THA by email to Merv Saltmarsh ER Business Improvement at merv@tha.asn.au or mobile direct on 0407 869 924. Members can also have access to all of our services and much more, including the member’s area of the website.
February 2019 www.tha.asn.au
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