Worker was unhappy in his role, his concerns were ongoing, and he genuinely wished to leave his employment with employer
A regional service integrity manager with over a year of service lodged an application alleging he was dismissed in contravention of general protections provisions after resigning from his employment.
The worker contended he was forced to resign because of his employer's conduct, including being subjected to systematic conduct that fundamentally altered his role, unreasonable workload demands, and a disregard for his concerns.
The employer raised a jurisdictional objection, contending the worker was not dismissed, arguing he voluntarily resigned and was not forced to do so by any employer conduct.
The worker alternatively argued his resignation should be treated as dismissal at the employer's initiative because he was psychologically impaired when he resigned, and the employer blocked pathways to rescind his resignation.
Initial email and conversation trigger
One morning, the worker sent an email to the employer's senior people partner stating he was hoping to find time to discuss an ongoing issue with a manager.
He had been working with his direct supervisor for the past few months to resolve these issues when they occurred as individual instances.
The worker stated that at this stage, he did not require HR intervention but was becoming increasingly concerned that this matter would not be dealt with fairly or justly.
The following morning, prior to any discussion taking place, the worker sent an email stating he would be submitting his resignation momentarily and that ultimately his reasons for wanting to catch up no longer applied.
The statement in the worker's email that "the situation deteriorated" clearly indicated that it was his conversation with a manager that triggered the worker's decision to resign. That conversation took place for about eight to ten minutes the previous morning.
The manager gave evidence that in his discussion with the worker, he advised him that he had spoken with another manager who would call the worker to resolve his concerns. The worker gave evidence that during this conversation, the manager told him he would now need to organise time with another manager to resolve these issues directly himself.
The worker explained that he had come to the manager because he was unable to resolve anything with the other manager.
Resignation email and post-resignation events
The following day, the worker sent a resignation email stating this decision was not one he took lightly; however, this had become unavoidable due to persistent workplace bullying, unreasonable demands, and lack of action from management.
The worker raised concerns, including being repeatedly assigned duties outside his job description, intimidation and public undermining, a hostile work environment, and the failure of management to intervene. The resignation email was the first time that the worker raised allegations of workplace bullying and intimidation.
At some time shortly after the resignation, the worker spoke to another senior manager who acknowledged that there had been failures.
The Commissioner accepted the worker's unchallenged evidence that he informed this manager that he did not want to resign and would like the matter resolved.
Following further communications in subsequent weeks, the worker had another discussion with the senior people partner and expressed dissatisfaction with the way the matter had been dealt with.
The senior people partner said that the employer could proceed with a formal investigation if the worker wanted to take it up.
The worker confirmed that he wanted an investigation to occur. Later that day, the senior people partner sent the worker a letter asking him to provide details regarding his complaint and attached a confidentiality notice.
Investigation process and confidentiality concerns
The confidentiality notice stated the worker's duty as an employee was to participate fully and honestly, and to respect the privacy of the parties involved.
The worker should not talk about the matters discussed with co-workers or with any individuals outside of immediate family, excluding professional advisors.
In response, the worker sent an email stating he had concerns regarding the independence and fairness of this process due to repeated breaches of trust and retaliatory treatment he had received.
The following day, the worker spoke to the senior people partner and raised concerns about impartiality in investigating the issues. The worker did not articulate with any clarity his concerns about the confidentiality notice, but was adamant that he could not sign it.
The worker raised concerns that the confidentiality notice would have unlawfully restricted his statutory rights and prevented him from seeking medical treatment for his work-related mental health injury.
The senior people partner gave evidence, which the Commissioner accepted, that the worker did not raise these concerns at the time the confidentiality notice was sent. If they had been raised, the senior people partner would have confirmed that the confidentiality notice was not intended to impede his ability to seek medical support.
The investigation did not commence because the worker did not provide details of his complaint and did not sign the confidentiality notice.
Commissioner's credibility findings
The Commissioner preferred the evidence given by the manager regarding his discussion with the worker over that of the worker.
The Commissioner found the manager to be a careful and reliable witness who answered questions directly and responsively. In contrast, a number of the worker's responses during the hearing were argumentative and non-responsive.
The Commissioner considered that the worker's evidence concerning factual matters had been coloured by the extent to which he felt aggrieved by what he perceived to be conduct that led to the termination of his employment.
Based on the Commissioner's findings as to what was discussed, there was nothing in those communications that indicated an intention on the part of the employer to bring the worker's employment to an end. Nor would such communications, on any reasonable view, probably have that effect, such that the worker had no effective or real choice but to resign.
The Commissioner considered that, following his short telephone conversation with the manager, the worker retained a real and effective choice to pursue several alternatives rather than resigning.
First, the worker could have participated in the discussion with another manager with the first manager present. Secondly, the worker could have proceeded with his initial plan to seek advice from the senior people partner and have his concerns formally documented.
Findings on allegations and alternatives
Thirdly, the worker could have requested HR intervention, which would likely have triggered an internal investigation. The Commissioner did not accept the worker's submission that the confidentiality notice would have impeded a fair and reasonable investigation prior to his resignation.
Fourthly, the worker could have made a complaint to a more senior manager as he did later. Fifthly, the worker could have made a complaint to an external body.
Given that not even the worker believed, prior to his discussion with the manager, that the employer either intended to terminate his employment or had engaged in conduct which left him with no real or effective choice but to resign, the Commissioner did not need to address the pre-conversation conduct.
The Commissioner made findings about the worker's various contentions without referring in detail to each piece of evidence. The Commissioner did not accept the worker's contention that the employer fundamentally altered his role and responsibilities without consultation.
The Commissioner was satisfied that the tasks assigned by the other manager to the worker were within the scope of his duties and responsibilities. The Commissioner did not accept that the employer imposed unreasonable and excessive workload demands on the worker. The Commissioner did not accept that the employer created public embarrassment or undermined the worker's professional standing.
Worker made a considered decision
The Commissioner was satisfied that the employer did not engage in any conduct with the intention of bringing the worker's employment to an end.
The first manager was genuinely disappointed about the worker's resignation. The other manager was of the opinion that the worker did good work and nominated the worker for an award several months prior.
In relation to the worker's alternative case that he was dismissed at the employer's initiative, the Commissioner accepted that he was experiencing emotional stress when he decided to resign. Notwithstanding this, the evidence established that the worker made a considered decision to resign.
The worker spoke with the manager at approximately 10:15 am one morning, but he did not send his resignation email for another 24 hours.
The level of detail and clarity in the email indicated that he had carefully considered his decision.
The Commissioner did not accept that the worker's resignation was given "in the heat of the moment". A reasonable person would have understood from the clear language used in the worker's resignation email that he had a genuine and real intention to resign.
No dismissal found
Following his resignation, the worker made statements to the effect that he would consider rescinding his resignation if the other manager's behaviour changed.
However, at no point did the worker unconditionally request that his resignation be withdrawn or rescinded. It was always contingent on the other manager's behaviour changing or the matter being resolved.
The Commissioner did not accept that the employer obstructed the worker's ability to rescind his resignation. The worker was informed that he could lodge a complaint and have it investigated; however, at no stage did he provide written particulars as requested.
The provision of such particulars was necessary for any investigation to commence, and the employer's requirement in that regard was reasonable.
Having regard to all the circumstances, the Commissioner was satisfied that a reasonable person would have understood that the worker had a real and continuing intention to resign.
It was evident that the worker was unhappy in his role, his concerns were ongoing, and he genuinely wished to leave his employment. The decision to end the worker's employment was his own; it was not initiated by the employer.
