Employer says worker resigned from post as business manager at car dealer
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued that he was forced to resign after being allegedly bullied at work.
In its defence, the employer argued that the worker voluntarily resigned from his employment. Hence, no dismissal occurred.
‘Bullying’ and ‘harassment’
Around October 2022, the worker commenced employment with the company which was a car dealer in Victoria.
On the letter of offer dated 18 October 2022, the worker was appointed to the position of business manager with a six-month qualifying and probationary period.
Before the case arose, the worker and the employer developed a good working relationship, and the former demonstrated capability in his role in the company.
However, on 29 November 2022, the worker was absent from work on personal/care’s leave and upon his return to work, he was requested to sign a document confirming that his absence would be unpaid. The worker argued that this led him to feel bullied and harassed by the employer.
The next month, the worker was again absent from work, and following an inquiry, the worker was advised that the employer did not make payment for sick leave absences during the first three months of employment.
The worker was also incorrectly advised regarding his personal/carer’s leave entitlement and was again requested to sign a pre-populate document confirming that his personal leave was unpaid which led him to believe that this was again bullying against him.
Nonetheless, the case noted that any outstanding payment due to the worker regarding the personal leave he had taken was rectified.
‘I am left with no option but to hand in my resignation’
Around January 2023, the worker was required to attend at Broadmeadows Magistrates Court to obtain a family violence intervention order. Hence, the worker said that he informed the employer that he would need to be absent from work.
However, the worker gave evidence that he was advised by the employer that unless his shift could be swapped with another worker, then it “would be the last nail in my coffin with regard to my employment.”
Days later, the worker sent a letter of resignation to his employer stating, “the anxiety that would be provoked from me attending a court hearing for my own protection knowing it’s having a detrimental effect on my future employment prospects, with my existing condition is going to have massive detrimental effects on my mental health, hence I am left with no option but to hand in my resignation.”
Meanwhile, the employer contended that the worker resigned from his employment. Hence, his application did not satisfy the requirement in the Fair Work Act as a person being dismissed.
“The [employer] submits that the evidence demonstrates that [the worker] was supported during his employment, and its error in relation to the calculation of [the worker’s] personal/carer’s leave entitlements was resolved prior to his resignation,” the Commission noted.
FWC’s decision
After examining the case, the Commission found that the worker had not been dismissed by the employer nor was forced to resign because of the conduct of the employer.
The FWC noted that the evidence presented did not demonstrate that the worker was the subject of bullying by the employer.
Moreover, it did not consider that the employment termination was the probable result of the employer’s conduct such that the worker had no effective or real choice but to resign.
Meanwhile, with regard to the worker’s argument against his employer about his absence from work to attend Court, the Commission accepted the employer’s evidence that it did not say anything regarding the “last nail” in the worker’s “coffin.
The FWC also dismissed the worker’s contention that the employer deliberately made mistakes about the worker’s employment.
