Medical certificate dispute leads to resignation claim at workplace

FWC explores boundaries between performance management and forced resignation

Medical certificate dispute leads to resignation claim at workplace

The Fair Work Commission (FWC) recently dealt with a worker's claim under section 365 of the Fair Work Act 2009 that she was forced to resign from her position after returning from parental leave.

She alleged that changes to her duties and her employer's conduct left her with no choice but to resign.

The worker's case focused on several workplace events that started with a disciplinary meeting in July 2024. She took medical leave following this meeting, which led to disputes about medical certificates and leave arrangements.

The Commission needed to determine whether the employer's conduct forced the worker to resign, making it a constructive dismissal rather than a voluntary resignation.

Workplace dispute leads to resignation claim

The worker began as a personal assistant in September 2017, later becoming an executive assistant and office manager reporting to the managing director.

After returning from parental leave in March 2023, she worked 2.5 days per week, later increasing to 3.5 days. She found her duties had been reduced, which she claimed was unfair treatment.

The managing director acknowledged taking over some duties due to her part-time arrangement but maintained there were pre-existing performance issues unrelated to parental leave, including problems with travel bookings and administrative tasks that weren't meeting required standards.

A meeting on 8 July 2024 became a critical point in the dispute when the managing director questioned the worker's trustworthiness over an unauthorized farewell lunch. Following this meeting, she took annual leave, then personal leave supported by medical certificates.

Issues with worker’s medical certificates

The tension escalated when the managing director demanded a new medical certificate and attempted to speak directly with her doctor. In an email dated 9 September 2024, he wrote:

"If we do not have an updated certificate by COB tomorrow and you do not return to the office, we will be making a determination of your continued employment at [the employer] on the basis of this refusal and your previous refusal to follow reasonable directions as outlined in earlier emails."

The Commission found this demand inappropriate, stating: "[The employer] appears to be of the misguided view that this is a reasonable and lawful direction to make of [the worker]. It is not. [The worker's] treating practitioner is not obliged nor permitted to discuss her medical condition with [the managing director], unless [the worker] expressly agrees to such a discussion being had."

The worker resigned on 20 September 2024, citing what she called "unacceptable conduct" and an unsafe work environment.

Commission determines voluntary resignation

The Commission referenced key principles from Bupa Aged Care Australia Pty Ltd v Tavassoli, which established that for a constructive dismissal claim, "the requisite employer conduct is the essential element." The employer must have either intended to end the employment or engaged in conduct where termination was the probable result.

The Commission found that while the employer's conduct was "at times, unpleasant," it did not meet the threshold for forced resignation.

Commissioner Fox stated: "While I acknowledge that the conduct of [the employer] post-8 July has, at times, been unpleasant, when I consider the totality of [the employer's] conduct, I do not consider that [the worker] has established that the conduct left her with no choice but to resign."

The Commission dismissed the application, concluding that the worker had "other options available to her, instead of resignation, such as returning to work and participating in performance discussions." This meant her resignation was voluntary rather than forced by her employer's conduct.