Employer argues job ad was irrelevant since she resigned on her own
A worker recently filed a claim before the Fair Work Commission (FWC), alleging that she was forced to resign when she found her role being advertised on Seek, among other reasons.
The worker, Lisa Dale, filed a general protections application related to her dismissal on 14 July 2023. Her claim involved alleged adverse actions taken by her employer, Energetic Cleaning Services Pty Ltd.
The worker was hired as a part-time bookkeeper until she was given full-time employment. The nature of her engagement, whether as an independent contractor or an employee, was a matter of dispute, primarily due to the absence of a written contract.
Job advertisement on Seek
The worker argued her employment ended on 12 July 2023 after she discovered that her role had been advertised on Seek.
She claimed that she left because of workplace bullying, and she believed that if the issue remained unresolved, the bullying would continue.
In its defence, the employer argued that the Seek advertisement was a reaction to the worker's statement on 11 July 2023, expressing her inability to work with the general manager.
It said the ad was made in preparation for finding a replacement to fill the worker's role should she choose not to continue working for the employer.
Meanwhile, the employer said that if the worker couldn’t work with the general manager, then it would offer a flexible arrangement.
It said the worker would be able to work from home some days and have the general manager on the road certain days while she was in the office.
Furthermore, the company told the general manager "not to liaise with the worker socially, but anything to do with work, the worker will need to find a way to be professional and support the general manager like her other coworkers."
After this remark, the employer said the worker went to work the next day and took her belongings on the basis that she "knew [she] no longer had a job."
HRD previously reported about a worker who questioned her dismissal after being surprised that her position was advertised on Facebook without her knowledge.
Was the worker forced to resign?
In its decision, the FWC said it was not satisfied that there was a forced resignation where the [worker] had no option but to resign.
It said there was no evidence that indicated the employer’s initiative to terminate the worker’s employment.
“Mere dissatisfaction with the employer’s response is not termination at the initiative of the employer. It was when the [worker] had taken her belongings and left the employment that the [worker] had resigned and repudiated the employment relationship,” the FWC said.
Additionally, it said that if the worker could no longer work with the employer because she had been bullied, the worker should have filed with the anti-bullying jurisdiction of the Commission.
It also found that the employer’s Seek advertisement “did not indicate that the [worker] was being dismissed but was used to find a new employee had the [worker] chosen to resign.”
