Worker resigns after performance improvement plan, claims unreasonable management

The Fair Work Commission (FWC) examined whether a public servant was dismissed after he resigned, claiming he was forced to do so because he exercised workplace rights and was subjected to a sustained pattern of coercive and unreasonable management conduct. 

The employer raised a jurisdictional objection on the ground that the applicant voluntarily resigned and was therefore not dismissed within the meaning of the Act. A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers to deal with a dispute about whether a dismissal was in contravention of the general protections provisions. 

The applicant was employed in the Australian public service for ten years and joined the department in April, where he remained employed until he resigned, giving two weeks' notice.

Manager commenced performance improvement plan in May

The employer outlined that a new manager started supervising the applicant in late January.

Prior to this, a different manager had been the applicant's supervisor. The new manager and the previous manager conducted a mid-cycle review discussion with the applicant in late February. 

The new manager and the applicant had a meeting regarding his performance in late March. During the period from February to April, an employee transferred out of the applicant's team, a senior employee in the applicant's team was selected to temporarily work on a sprint team, and a graduate employee was placed in the applicant's team for a rotation.

The applicant and the previous manager had two meetings in late April and exchanged a related email during this period while the new manager was on leave.

In mid-May, the new manager and the applicant had a meeting where the manager advised the applicant of her decision to commence a back-on-track plan in relation to his performance. 

The manager and the applicant had a further meeting shortly after about the details of the back on track plan. The applicant and manager had three subsequent meetings as part of the back on track plan in early to mid-June.

Applicant commenced personal leave and lodged complaint

In late June, the applicant commenced a period of paid personal leave. The applicant remained on paid personal leave until the end of his employment. Between late June and late July, the applicant had an email exchange with members of the employer's people and organisational strategy branch. 

In late July, the applicant lodged a formal complaint. After a few months, the applicant and an employment relations team member from the employer exchanged emails regarding the handling and progress of the applicant's complaint.

In late August, the applicant submitted his written notice of resignation to the manager, giving two weeks' notice, which was the minimum notice period permitted by the applicant's terms and conditions of employment. The applicant's resignation took effect in accordance with that notice in mid-September. 

The applicant said that he was subjected to a sustained pattern of coercive and unreasonable management conduct, which rendered the working environment untenable.

He said that after nearly two years of positive performance with no documented concerns, performance issues were raised for the first time shortly after his manager was merit-listed for promotion, a timing he contends was not coincidental.

Applicant was excluded from recruitment and team decisions

The applicant said he was excluded from recruitment decisions within his own team, referring to the graduate who rotated into his team and had his senior employee taken offline without consultation, referring to the temporary work on the sprint team. 

The applicant said he was harassed during his personal leave, and the employer's handling of his bullying complaint was marked by delay, procedural opacity and inaction.

He submitted that the cumulative effect of these actions, being unsubstantiated performance allegations, systematic exclusion, harassment during personal leave, and institutional inaction, created an intolerable work environment from which resignation was the only rational option.

The FWC noted the only matter it was required to determine was whether the applicant was dismissed within the meaning of the Act.

The FWC emphasized that the onus was on the applicant to prove that he had no real or effective choice in the circumstances but to resign because of the employer's conduct. 

The FWC determined first, there was no obvious connection between the applicant's manager being merit-listed for promotion and the raising of performance concerns with the applicant.

FWC determines staffing matters occurred before resignation

In terms of the allegation that the applicant was excluded from a recruitment decision, the FWC was satisfied on the evidence that this related to a graduate employee being placed in the applicant's team as a part of a rotation program in February. 

As to the issue of the senior employee being moved to a different team in March, the FWC accepted the employer's evidence that this was to participate in a short-term sprint team designed to complete a particular task.

The FWC added that, additionally, both staffing matters occurred many months prior to his resignation.

In terms of the performance management process, the FWC stated it did not accept that such a process would have forced the applicant to resign.

The FWC explained that the back on track plan is one option available to support employees to improve their performance. 

The FWC noted the employer pointed to its policies, which showed that this type of plan does not lead to a decision to terminate employment—that would require a different type of performance management process.

The FWC observed further that the applicant was not required to engage with the plan while he was on personal leave.

FWC determines complaint handling was reasonable and appropriate

In terms of the applicant's bullying complaint, the FWC noted the complaint was made in late July, the day prior to his personal leave commencing.

The FWC acknowledged that the process to begin an investigation was not particularly quick, but it was satisfied that the applicant was kept informed of the progress and that the correspondence between the applicant and the employer in relation to his complaint was reasonable and appropriate. 

The FWC stated it did not accept that any delay was evidence of conduct on the part of the employer designed to force the applicant to resign.

The FWC accepted the employer's submissions that the applicant had multiple options available to him other than resignation, which included remaining on paid leave, returning to work and engaging with the plan, taking up the offer to explore other roles within the department, or seeking a review of the outcome of the plan in accordance with his rights as an Australian public service employee. 

The FWC observed that, finally, any events that took place after the applicant resigned could not have had any bearing on his decision to resign.

FWC concludes applicant not dismissed

The FWC determined these matters, whether considered individually or collectively, could not reasonably be said to give rise to a finding that the employer intended to bring about the end of the applicant's employment such that he had no real or effective choice but to resign. 

The FWC concluded the applicant had not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. 

The FWC emphasized that, as a result, it was not satisfied that he was dismissed within the meaning of the Act and dismissed the application.