FWA upholds dismissal in sexist slur case

by Stephanie Zillman30 Jul 2012

The workplace arbitrator has rejected a former employee’s application to have her employment reinstated – it was found that her resignation was not forced as she had claimed.

According to employment law experts at Justitia, the case of Richman v Quackhouse Pty Ltd T/A Hotel Ingleburn [2012] FWA 5670 provides a number of timely reminders to employers.

Firstly, it cannot be assumed that because an employee has resigned, they can’t file an unfair dismissal claim. The arbitrator will examine whether the resignation was voluntary or forced. In cases where the employee was forced to resign because of the employer’s conduct, the employee may be able to make a successful claim.

Secondly, in order to successfully argue that his or her resignation was forced, an employee will be required to demonstrate, to the Tribunal’s satisfaction, that she or he had no option but to resign.

As a case in point, a former hotel employee claimed she was forced to resign from her employment, and thus was constructively dismissed, after she was labelled a “slut” by the hotel supervisor’s brother. The derogatory comment was made during an argument on the hotel premises, and following the former employee becoming distressed she orally tendered her resignation to the supervisor.

In a subsequent phone call to the employee, the supervisor said that if the worker would return to work, a meeting would be arranged between the three parties during which an apology would be made. When the employee returned to work, no meeting took place, but the hotel supervisor’s brother did approach the employee and apologised to her. The applicant was disappointed that the promised meeting did not take place, and that the hotel supervisor did not approach her to discuss the matter, and so she tendered her resignation in writing.

FWA held that in order for a resignation to be ‘forced’, the employer’s action must either be “intended to bring the employment to an end, or has the probable result of bringing the employment to an end”.

 FWA found that the applicant was not forced to resign through the employer’s conduct. As the applicant was willing to return to work before receiving an apology, it meant she could not argue that she had no option but to resign.

 

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