Manager claims unsafe work environment over misconduct investigation
A clinical care manager with over two years of service lodged an application alleging she was dismissed in contravention of general protections provisions after resigning from her employment.
The worker contended that the allegations against her were unsubstantiated and were intended to force her resignation, and that the employer established an unsafe work environment, which left her unable to safely continue her employment.
The employer objected to the application on the basis that it did not dismiss the worker, arguing she voluntarily resigned while an investigation into allegations of misconduct was ongoing.
The worker submitted she had no choice for the sake of her registration, career and family but to hand in a forced resignation to preserve her psychological well-being and safety.
Investigation process and resignation
On 13 May 2025, the employer provided the worker with a letter of allegations, relating to an investigation concerning the payment of non-approved overtime.
In connection with this issue, the worker was directed to attend a meeting with the employer on 15 May 2025 and provide a response to the allegations.
The worker provided detailed responses to the allegations, including in writing, on 15 May and 20 May 2025, which the employer was considering.
On 28 May 2025, while the investigation was ongoing, the worker tendered her resignation in writing. The resignation letter stated she was resigning from her position with her final working day to be several weeks later.
This decision had been made due to ongoing treatment in the workplace that had a significant effect and impact on her health, wellbeing and safety.
The workplace had become untenable and had left her unable to safely continue her employment as a clinical care manager. The worker was paid two weeks' pay in lieu of working out her notice period.
The worker contended, in summary, that the allegations were unsubstantiated and were intended to force her resignation.
Employer's investigation approach found procedurally fair
The evidence demonstrated that at the time the worker tendered her resignation on 28 May 2025, the employer was in the process of conducting an investigation into allegations of misconduct by the worker.
The investigation had commenced with the letter of allegations, which set out the employer's concerns in considerable detail, the potential outcomes if the allegations were determined to be substantiated and invited the worker and her support person to attend an interview for the purposes of obtaining her response.
The employer was entitled to commence this process in light of its concerns, and the Commissioner considered that the employer's approach in the letter was procedurally fair.
The worker provided a response to the allegations, including in writing, on 15 May and 20 May 2025.
The Commissioner accepted the evidence of the employer's director of human resources that the employer was considering the worker's response and had not made a decision regarding the investigation outcome.
The worker contended that the investigation timeline was unreasonably lengthy, and this was prejudicial to her.
The Commissioner disagreed. The worker produced in excess of 40 pages of material in response to a detailed letter of allegations on 20 May 2025, only seven days after the 13 May 2025 letter of allegations was issued.
The employer advised the worker that it would take up to 10 business days to consider the material, which the Commissioner did not consider to be an unreasonable timeframe in the circumstances.
Resignation found to be voluntary
The terms of the worker's resignation letter were brief but communicated her resignation in unambiguous terms. At no stage had the worker sought to withdraw it.
There was no evidence to support a conclusion that the resignation was forced because of the conduct or a course of conduct engaged in by the employer.
Rather, the evidence pointed to a contrary conclusion. The employer had commenced a fair process to elicit a response from the worker to the allegations, which it was in the process of considering.
The Commissioner rejected the worker's contention that by sending the letter of allegations to the worker, about matters about which it held concerns, the employer was intending to force her resignation.
In relation to the worker's other contentions, including that the employer established an unsafe work environment and failed to pay wages correctly, the Commissioner accepted the director of human resources's evidence that she informed the worker that if she wished to raise concerns or complaints in relation to such matters she could do so, but that would be a separate process to the employer's investigation concerning the payment of non-approved overtime.
However, there was no evidence that the worker raised a formal grievance with the employer in relation to these issues.
Application dismissed for lack of jurisdiction
The Commissioner was not persuaded that the employer engaged in any such conduct with the intention of bringing the employment to an end, leaving the worker with no effective or real choice but to resign.
The Commissioner found that the worker's resignation on 28 May 2025 was voluntary and legally effective. She was not forced to resign.
The worker's resignation was at her election, on a timeframe of her choosing, while the employer's investigation remained on foot and before it had come to a conclusion.
The time taken by the employer to consider the worker's response to the allegations was not unreasonable. The Commissioner was satisfied, on the evidence, that the worker was not dismissed.
As the worker was not dismissed, she was not eligible to make an application under the Act, and the application was dismissed on this basis. The worker's application was dismissed by the Commissioner.
