Employer wins unfair dismissal claim over 'clear communication'

Case shows how employer's communication process protected it from worker's claim

Employer wins unfair dismissal claim over 'clear communication'

A recent Fair Work Commission (FWC) case has demonstrated the importance of a “clear communication process” after a worker alleged he was forced to resign.

After the FWC assessed the business’ correspondence with the worker, it ruled that he was not unfairly dismissed. The case’s circumstances are valuable for HR facing the same case.

The worker was a security manager who was required to attend client sites. According to customers’ feedback, the worker failed to perform his duties. The employer then opened a performance management process resulting in a performance improvement plan, but the “poor customer feedback” went on.

To address the worker’s issues, the employer wrote to him about “its dissatisfaction regarding his performance” and the consequences when he “fails to improve.” The letter contained ten allegations and requested a response and a meeting with the worker.

During the meeting, the employer said that it viewed all allegations as “substantiated or partially substantiated,” noting that it saw the worker as “not suitable” for the role.

Finally, the employer requested the worker to “show cause” as to why his employment should not be terminated. He did not respond and instead went on personal leave. The leave lasted several months, with the most recent certificate stating he was unfit for work until October 2021.

In October, the employer talked to the worker, and the latter asked about the outcome of the performance management process. The employer explained that termination was a “possible outcome” since the worker had not responded to the show cause letter.

The employer noted that the worker “had a choice to return work when he was fit, which would also involve finalising the performance management process” or “he could choose to resign if he did not wish to return to work and/or finish the performance management process.”

If the worker selected the latter, the employer offered four weeks of pay. A few days later, the worker sent a text message to the manager that said:

“I hereby tender my resignation. I feel I have been left with no other choice. Can you please let me know when I can expect my final pay.”

After a while, the manager replied to “encourage the worker to reconsider his resignation.” The manager recommended the worker reflect for 48 hours before confirming his decision. The worker responded with:

“I didn’t verbally confirm my resignation yesterday. You advised that if I didn’t resign, the most likely outcome for my return to the office would be termination.”

After several exchanges, the employer took more time to explain the options open to the worker. It gave the worker opportunities “to consider his position and confirm his intentions regarding returning to work.”

Later, the worker then sent an email confirming his resignation.

The worker then filed an application for unfair dismissal with the FWC.

The FWC’s decision

The worker argued that he was given an “ultimatum” of either being dismissed or resigning and receiving four weeks’ pay. The employer maintained its position that he “freely chose” to resign.

The FWC considered all the evidence, including a record of their communications and correspondence. It determined if the employment was terminated at the employer’s initiative, including the worker feeling forced to resign due to the employer’s conduct.

In its decision, the FWC found the employer had “carefully explained” that dismissal was a “possible outcome” and did not outright dismiss the worker. In fact, it was waiting for the worker’s response to its show cause letter.

The FWC also noted the worker’s intention when he considered resignation and receiving four weeks of pay, saying he saw it as an “attractive option.”

Thus, the FWC ruled there was no unfair dismissal.

Takeaways for HR leaders

In a media release from the Victorian Chamber of Commerce and Industry (VCCI), the case showed the correspondence between the employer and its worker was “carefully crafted, strategic and well-communicated.”

“As highlighted by the FWC, the [employer] consistently reiterated the choices available to the worker and didn’t hurry the process,” VCCI said.

“This set of facts can often present as a challenge to [employers] and it can be easy to fall into the trap of making a snap decision. However, by taking the time to assess the position in each phone, email and text conversation, the [employer] was able to provide the FWC ample evidence that the worker had freely resigned,” VCCI added.

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