Case shows employer accommodated postponement requests for disciplinary meeting multiple times
The Fair Work Commission (FWC) recently dealt with a general protections application from a worker who alleged he was forced to resign from his employment.
The employer objected on the ground that the worker was not dismissed but voluntarily resigned. Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers.
The case required the FWC to examine whether the worker was forced to resign because of employer conduct, whether the resignation was voluntary, and whether the Commission had jurisdiction.
Worker's claims about workload and health
The worker gave evidence that his role significantly evolved beyond the original scope and that he gradually assumed responsibilities far beyond those initially outlined.
While the worker's employment contract provided for a 38-hour week with scope for reasonable overtime, the worker said that early on, he was working overtime and regularly on weekends.
The worker stated that he had repeated verbal conversations where he was told that senior managers frequently work long weeks and that he needed to manage his time better. However, the worker did not resign at this time.
In the months preceding his resignation in June 2025, the worker said he experienced chronic stress and regular migraines.
He said that his doctor formally certified that these issues were directly linked to his working hours, stress levels and lack of proper support at work.
The worker noted that he had, conservatively, worked an estimated 550 hours of unpaid overtime.
The worker's evidence included medical certificates and a letter dated 27 June 2025 from a medical centre stating the worker had been struggling with new-onset migraine headaches attributed to his heavy workload and stress from work.
Show cause notice and investigation
The employer submitted that on 4 June 2025, the worker was notified of an investigation into serious breaches of the worker's non-compete and confidentiality obligations.
The show-cause notice alleged that the worker had breached his obligations. The notice detailed that the employer had requested the worker to film a video in the warehouse showing a team member packing products into branded packaging.
The employer's packaging supplier informed the employer that it had received an inquiry from a person who shared the video and requested the supplier replicate the product, but with different branding.
The supplier confirmed the inquiry came from an account using a name that was a combination of the worker's first and middle names.
Based on this, it was alleged that the worker had used confidential information to create a product similar to the company's and engage in business competition.
A director stated that he initiated the investigation and placed the worker on a temporary stand-down from work with pay while the investigation was being conducted.
Given the serious nature of the allegations, the director temporarily removed the worker's access to his work email and other company systems.
Negotiations and resignation
The worker sent an email on 10 June 2025 setting out assertions regarding the sustained and unreasonable workload, which consisted of 650 hours of additional time beyond his contracted week.
With respect to the investigation, the worker categorically denied any misconduct.
The worker put forward a proposal to submit his resignation under certain conditions, including no finding made in respect of the alleged misconduct, an ex gratia payment, payment of statutory entitlements, and a non-disparagement agreement.
The director's email dated 12 June 2025 set out the employer's rejection of the worker's assertion about overtime, but acknowledged the worker's proposal to resign.
The employer would accept the worker's resignation, albeit an ex gratia payment was not included in the counteroffer.
The worker, not satisfied, put forward a further offer including an ex gratia payment. The director responded, stating the company did not accept the worker's resignation proposal terms and would be proceeding with the investigation.
On 17 June 2025, the worker emailed a final proposal for mutual separation with formal resignation, stating he was formally tendering resignation effective immediately.
Medical and overtime evidence examined
By email dated 17 June 2025, the director acknowledged receipt of the worker's resignation, and the employer accepted the immediate resignation.
The director stated that as the worker resigned effectively immediately, no finding of misconduct was ever made.
The FWC examined whether the worker was forced to resign because of employer conduct.
The Commissioner reviewed the medical evidence provided by the worker. With respect to medical certificates dated 5 June 2025 and 13 June 2025, they were issued after the show cause notice was provided.
The Commissioner stated: "I am of the view these medical certificates are of no probative value in respect of [the worker's] contention of having experienced illness over the period of the six to nine months preceding his resignation."
In respect of the letter dated 27 June 2025, the doctor's letter spoke of having first consulted the worker regarding migraine headaches on 11 March 2025.
However, apart from a medical certificate of 12 March 2025, there was no other direct evidence from the doctor that supported the worker having experienced a period of chronic stress and regular migraines for six to nine months.
The Commissioner stated: "I am therefore unpersuaded that the evidence adduced supports a finding that medically certified migraines and stress-related illness, as purported by [the worker], rendered [the worker's] resignation involuntary."
Investigation process found reasonable
The Commissioner examined the worker's assertions regarding working hours. According to the employer, it was not until the worker was provided with the show cause notice that the claim of additional hours was made.
The Commissioner stated: "While appreciative that [the worker] had gone to great lengths to attempt to accurately document his hours of work for the period of his employment with [the employer], I am not satisfied that the methodology adopted by [the worker] renders the spreadsheet as a reliable and accurate source of truth."
The Commissioner stated: "It does not strike me that the evidence of [the worker's] hours of work supports a claim that [the worker] had no choice but to resign, and I am persuaded on balance, that more likely than not, the issue of overtime was not raised until after [the worker] had received the show cause notice."
The Commissioner stated they preferred the evidence of the director over that of the worker.
The Commissioner said: "Based on the evidence, I am unpersuaded that the allegations had been fabricated by [the employer], if that is what [the worker] infers, and while [the worker] agitates that there was procedural unfairness in respect of the Investigation, the evidence does not support [the worker's] argument."
It was evident that the employer accommodated the worker's requests to postpone the disciplinary meeting.
The worker was provided with particulars of the conduct he was alleged to have engaged in, and it was not the case that the employer had pre-determined the outcome.
Voluntary resignation finding made
The worker submitted that his resignation was made under duress, in an environment that had become physically and emotionally unsustainable and was therefore not voluntary.
The Commissioner stated: "[The worker] was not so incapacitated, whether by his purported ill health or the purported duress he was experiencing, to attempt to negotiate a mutually acceptable exit from [the employer]'s business."
The Commissioner stated: "To the extent that [the worker] relies upon the impending disciplinary meeting or Investigation findings as forming part of that untenable working environment, it is well established that a fear of discipline or dismissal is not by itself generally considered to be grounds for claiming a forced resignation."
As to the reasonableness of the employer removing the worker's access to the employer's systems, in light of the allegations of misconduct levelled at the worker, it was not unreasonable of the employer to secure its technological infrastructure or to instruct the worker not to attend work while the investigation was occurring.
The Commissioner concluded: "On balance, I am not persuaded, having considered and weighed the evidence before me, that [the worker] was forced to resign because of conduct, or a course of conduct, engaged in by [the employer]."
The Commissioner stated: "As I have concluded that [the worker] was not dismissed by [the employer], it follows that his application does not meet the requirements of s 365 of the Act and the Commission does not have jurisdiction to deal with it." The application was dismissed.
