Was it voluntary resignation or flawed disciplinary procedure?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued she was dismissed from work after being subjected to a disciplinary procedure.
In its defence, the employer contended that the worker was not dismissed nor was forced to resign from her employment despite a safety incident at work.
‘Breached’ safety procedures
Prior to the case, the worker commenced employment as a serviceperson at the company’s mine site in Western Australia.
Around April 2023, the site’s maintenance supervisor reported a safety incident to the project manager involving the worker’s conduct.
The supervisor said that the worker had isolated a drill rig in preparation for its daily service but failed to apply her personal serviceperson danger lock and tag to the isolation point before starting to fuel the drill rig.
Hence, the employer started an investigation into the safety incident and later found that the company’s safety procedures have been violated.
Days later, the employer sent the worker a letter advising her that she was stood down with pay pending further investigation and the outcome.
“On 26 April 2023 the Respondent [employer] sent a letter to the Applicant [worker] which notified her of the allegations against her, invited her to either attend a meeting or make a written response, and advised her of the possible ramifications if the breach of safety protocols was substantiated,” the Commission stated.
Consequently, on 5 May 2023, a meeting between the worker and the employer occurred and a further meeting described as an “outcomes meeting” happened days later to discuss the employer’s findings. After the meeting on 8 May 2023, the worker tendered her resignation.
Voluntary resignation or not?
The employer argued that the worker had voluntarily resigned and that it was not the fact that the worker had no other choice.
It further noted that the company’s investigation process regarding the safety incident was proper and not itself a cause for the worker’s resignation.
However, despite such claims, the worker said that during the May 8 meeting, the employer had said words to the effect that they had decided to dismiss the worker.
The worker also argued that the employer referred to the letter that was discussed at the meeting as a “termination letter” contrary to a “show cause termination letter.”
“She [worker] had formed the view that her employment was going to be terminated and that any opportunity to respond was at best simply a device to give an illusion of procedural fairness, as she submitted that there was nothing she could have said that would have prevented termination,” the case noted.
HRD previously reported about a worker’s claim that she was forced to resign after undergoing a safety incident investigation at the workplace, however, the employer argued that she resigned on her own initiative.
In another case, a worker argued he was dismissed from work after a heated conversation with his employer.
Commission’s decision
Ultimately, the FWC dismissed the worker’s application as it found that the employer did not terminate her employment during the meeting on 8 May 2023.
The Commission did not accept the worker’s argument that she had no choice other than to resign because it was evident that the employer was commencing a process wherein she was offered an opportunity to address termination and make any pleas.
“I do not accept that she [worker] was told that the Respondent [employer] was not continuing her employment and further, that such references to termination as were made were made in the context of a potential outcome, subject to her making further submissions to the Respondent [employer],” the Commission stated.
