Employer defends termination as 'business decision'
The Fair Work Commission (FWC) recently dealt with a manager’s unfair dismissal claim after she said she was “forced to resign” when she informed her employer that she was moving to France with her husband.
The manager said she wanted to work remotely, but the company said it was not possible due to the “business requirements” of her role.
The employer, Oracle, is a Sydney-based company operating in the health industry which provides health assessment services. It’s reportedly a privately owned family company with three directors Neil Werrett, Zac Werrett and Dr Lena Attebo. Zac Werrett and Dr Attebo work full time in the business.
The employee started her employment with Oracle on 6 December 2021, and assisted in business establishment until Oracle started its operations three months later.
She was the company’s full-time “Practice Manager,” and had regular day-to-day dealings with Zac Werrett, Dr Attebo and other professionals and staff employed by Oracle. From time to time, she also talks to Neil Werrett.
According to records, she was accountable to all three directors but reported to Zac Werrett as the company’s executive director and Dr Attebo as a founder and leading clinician.
Living in France
In 2022, she and her husband decided to “get away and live in France” for three months between Christmas 2022 and March 2023. They planned that her husband would work remotely from France for his Australian-based employer.
She emailed the company’s director and said:
“Hi [directors],
I wanted to update you on a decision [my husband] and I have made.
[My husband’s employer] allows their staff to work from anywhere for 3 months a year, as long as there is some cross over in time zones. Luckily, he is global head of his division so he has all time zones to contend with. We have decided to take advantage and will move to France on Christmas day for 3 months.
I am happy to discuss an outcome that would be mutually agreeable. Should you decide that the position will be replaced, I will assist with that process. Should remote work be possible, I am also happy to discuss what that would look like.
Let me know when you would like to discuss further, and the outcome you would like.
We are very excited and realise not many people get to have this amazing opportunity.
Kind Regards,
Practice Manager”
Before the directors received this email, Oracle had “no knowledge of her plans.”
One of the directors immediately forwarded the email to the company’s in-house legal counsel for consideration and advice.
After a short period of discussion among the executives, they had decided that allowing the manager to work remotely from France was “not possible having regard to the operational needs of the business,” adding that “if she travelled to France as planned, then business restructuring would occur with the role of Practice Manager no longer being required and some of her duties [would be] distributed to others.”
Discussion meeting
She was called to a meeting to discuss possible options. At the start, the executives reportedly “complimented” her “on the opportunity she had to live in France and the fortunate situation she had where her husband could work for a globally operating Australian business from France.”
Then, Dr Attebo advised her “that working remotely for Oracle from France was not a possibility given business operations, as only a small part of her work could be done in that way.”
Dr Attebo also advised that as she “intended to leave the business for France for three months, then Oracle would not replace her and would cease the role of a Practice Manager.”
The manager asked, “What would you like me to do?”
The company’s legal counsel said, “To resign.”
Manager: “How would you like me to resign?
Legal counsel: “By email.”
The executive then said the “timing of her resignation could be a date of her choosing but that the business needed advance notice for planning purposes.” The meeting then concluded and “remained friendly.”
As the manager and the counsel walked out, the former casually said, “As you’re not replacing my role, you could make me redundant.”
The counsel allegedly replied, “You’re not getting any money out of us.”
By mid-November, the manager notified the rest of the company about her resignation with an email that said:
“Hi All,
Following from our discussion regarding my leave to go to France for 3 months, the business has decided not to continue with my position in 2023.
So it is with great sadness I tender my resignation with 4 weeks notice. My last day will be Friday December 16th.
I wish you and the business all the success for the future.”
Between her notice and final day, Oracle started to arrange the progressive re-allocation of some of her duties to other employees.
A week after her employment at Oracle ended, and two days before she left for France, she filed an unfair dismissal claim against the employer, claiming that she was “forced to resign.”
The commission’s decision
The employer argued that it did not place her in the position where she “had no effective or real choice but to resign.”
“When she said she would travel to in France for three months from Christmas 2022, she agreed to resign after being told that the business could not have her work remotely from France, and subsequently, [she] provided a written resignation and a date of her choosing on which her resignation took effect,” the employer added.
In its decision, the commission said the manager resigned in writing and gave four weeks’ notice with her resignation.
Her email was “clear on its face,” with the subject title “resignation,” with contents that said “I tender my resignation,” along with a resignation date.
The court also noted that “it was not until after receipt of this email that Oracle started making arrangements for the re-allocation of duties to others during the four-week notice period and thereafter.”
Was it ‘forced resignation’?
If she did not tell Oracle that she “intended to travel with her husband and live in France for three months, she would have remained as Practice Manager of the business,” the commission said.
“Oracle’s decision to not employ a Practice Manager was not a decision to make her position redundant while she was the incumbent. It was a conditional decision, a decision to restructure in the event that she left for France,” it said.
“The decision not to grant permission to work remotely from France was based on business reasons and was a considered response to an option raised by her. Her employer having made that decision, she was left with the choice to not go to France or to go to France knowing that she neither had leave of absence for that period nor permission to work remotely from afar,” the commission added.
“The choice was personally unpalatable, but it was, in the context of her employment obligations, a real and effective choice,” the commission said.
Thus, it ruled there was no forced resignation or unfair dismissal in this case and said the manager resigned willingly due to personal circumstances. Her application was dismissed.
