Employee argues discrimination and unfair treatment forced contract termination
The Fair Work Commission (FWC) recently examined a general protections claim involving a delivery driver who argued he was forced to resign from his position.
The case arose when the worker provided formal notice terminating his contract, but claimed this resignation was actually a dismissal caused by his employer's conduct and treatment.
The worker argued he had been forced to resign due to various alleged workplace issues, including concerns about wage withholding affecting other employees, disputes over vehicle charging responsibilities, and alleged discrimination based on his English and Mandarin language skills.
He maintained that despite providing written notice, his departure constituted a constructive dismissal under general protections provisions.
The employer contested the worker's claim on multiple grounds, arguing first that the worker was an independent contractor rather than an employee, and therefore could not be "dismissed" under employment law.
Additionally, the employer maintained that the worker had voluntarily terminated the relationship and had not been forced to resign by any conduct on their part.
Delivery services role creates employment relationship dispute
The employment relationship began when the worker was engaged by a delivery services company to collect and deliver goods to various customers using a delivery vehicle.
The arrangement was governed by written contracts entered into on 20 September 2024 and 10 October 2024, which the employer argued established an independent contractor relationship rather than employment.
The worker contended that despite these written contracts describing an independent contractor arrangement, the actual nature of the relationship was that of employer and employee.
This distinction was crucial because only employees can be "dismissed" under the Fair Work Act, while independent contractors cannot pursue dismissal claims under the same legal framework.
The FWC noted that determining the worker's status would require "an overall assessment of the relationship between the parties" and consideration of how the contracts were performed in practice over approximately six months.
However, the Commission chose to address the dismissal question first, assuming for argument that an employment relationship existed.
Contract termination notice triggers dismissal debate
On 15 March 2025, the worker provided an email to the employer titled "Termination of Contract Notice," formally notifying termination of the contract with four weeks' notice.
The notice stated the contract would end on 12 April 2025 and included provisions for fulfilling outstanding obligations during the notice period and finalising administrative matters.
The notice stated: "I am writing to formally notify you of the termination of the contract entered into between [the employer] and [the worker] on 10 October 2024. In accordance with Clause of the contract, I hereby provide four weeks' notice of termination. The contract will officially end on April 12, 2025."
The worker argued this notice represented a "forced resignation" rather than a voluntary termination, claiming he had no choice but to resign due to the employer's conduct.
However, there was no evidence that the relationship was brought to an end on the employer's initiative, and the worker did not contend that the employer had directly terminated the arrangement.
Worker cites multiple factors for forced resignation claim
The worker provided evidence of several factors he claimed forced his resignation, including approaches from other employees about problems they had experienced with the employer.
These other employees allegedly told him about wage withholding issues and warned him to "be careful" of the employer, creating concerns about his own employment security.
The worker also contended that the employer had sought to shift blame and responsibility for various matters from themselves to him, including responsibility for vehicle charging and dealing with problems he encountered with charging stations.
Additionally, the worker claimed he saw his position advertised before he sent the termination notice, which made him fear for his job security.
The worker also alleged discrimination based on his English and Mandarin language skills, stating he was afraid he would lose more money if he continued working with the employer.
He argued these combined factors made his position untenable and forced his resignation.
FWC applies forced resignation legal test
The FWC examined whether the employer had engaged in conduct that forced the worker to resign under section 386 of the Fair Work Act.
This provision requires that someone "has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
The Commission considered the worker's evidence, including his written statement, oral testimony, and copies of text message exchanges between the parties.
However, the FWC found the evidence insufficient to establish a forced resignation, noting that while the worker "may have been dissatisfied with or insecure in his working arrangements," this did not constitute being forced to resign.
The Commission applied established legal principles requiring that the employer's conduct must have been intended to bring the employment to an end, or that termination was the probable result of the conduct such that the worker had "no effective or real choice but to resign." The FWC found these tests were not met in this case.
Application dismissed on dismissal grounds
The FWC concluded that the worker had decided to end the relationship "of his own volition" by providing the written notice dated 15 March 2025. The Commission found:
"I do not think that the matters referred to by [the worker] either individually or in combination resulted in a forced resignation. I do not think [the employer] engaged in conduct or a course of conduct with the intention of bringing the employment to an end."
The Commission determined: "I conclude that even assuming that [the worker] was in an employment relationship with [the employer], [the worker] was not dismissed for the purposes of s.386."
This finding meant the worker could not pursue his general protections claim regardless of whether he was classified as an employee or an independent contractor.
The FWC ordered: "It follows that the application was not validly made and must itself be dismissed."
The decision demonstrates that workers claiming constructive dismissal must provide substantial evidence that their employer's conduct genuinely forced their resignation, rather than simply making their working conditions difficult or unsatisfactory.
