FWC says worker had 'real or effective choice' about resigning
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed he was forced to resign shortly after a private meeting with his employer.
In its defence, the employer argued that for several months, multiple issues arose with the worker’s performance in the workplace, but it did not compel the worker to resign.
‘Private meeting’ with the employer
In July 2021, the worker commenced employment with the company as a security and market safety lead for Australia and New Zealand.
The employer noted that the worker was the only staff member in Australia and New Zealand with access to the company’s security system and was relied on to deliver on the company’s security policy.
From May to August 2022, several issues arose with the worker’s performance, including his failure to deliver a security policy document (PML 108) that met the standard required by the employer.
The employer further said that the PML 108 failed to meet the basic security needs, including, for example, the need to restrict site access so that former employees could not use their site passes.
Moreover, when the worker was taken for a performance review discussion which included references to his need to engage more effectively with stakeholders and improve the quality and pace of his output, the worker “had not checked or sought to add his comments to the review discussion record, even though he was aware he was able to,” the FWC said.
Hence, on August 31, 2022, a private meeting occurred between the employer and the worker to discuss the latter’s performance.
The employer said that he provided the worker with an explanation of the general performance management process to ensure he understood that process.
However, the worker argued that it was during such a discussion that the employer, “stated to him that the ‘likely’ options arising from the midday meeting were that of either performance management, which could lead to termination of employment or immediate termination of employment,” the Commission said.
He further claimed that the employer encouraged him to resign because of the impact on his career prospects if he were terminated. Hence, after that, the worker prepared and sent his resignation to the employer.
FWC’s decision
After examining the case, the Commission was unsatisfied that the worker’s resignation was due to the employer's conduct or course of conduct.
The FWC stated that it preferred the evidence of the employer when it said that he made it clear to the worker that “a decision to resign was a matter for an individual undergoing a performance management process and that he had not encouraged the [worker] to do so.”
Moreover, the Commission noted that in such a circumstance, it was, after all, up to the worker if he wished to resign or not.
“He could have engaged in the midday discussion, put his views to his new manager… regarding the performance concerns held, and if a PIP were implemented, he could have worked to address any performance gaps,” the Commission said.
“That the w[worker] chose to resign rather than participate in a process that may have resulted in a PIP does not meet the high hurdle necessary to establish he had no real or effective choice,” it added.
