Worker resigns after requests to be removed from Sunday shifts were not accommodated

The Fair Work Commission (FWC) examined whether an ambulance transport attendant was dismissed after the employer objected to the application on the basis that it did not dismiss the applicant.

The applicant commenced work with the employer initially as a patient transport officer and immediately prior to her resignation was employed as a full time ambulance transport attendant. 

It was not in dispute that the applicant's dismissal took effect by reason of the applicant's resignation. The applicant was employed for over six years until her resignation.

Impact of Sunday shifts on the worker's wellbeing

During her employment, the applicant contended that she raised concerns about how certain aspects of the work, particularly being rostered on Sundays, were affecting her wellbeing. The applicant's position was that Sunday shifts contributed to a decline in her mental health. 

The applicant submitted that she raised these matters with the employer and informed it of what she described in her application as her disabilities. The applicant contended that her request to be converted from full time to casual employment was declined.

The applicant submitted that despite her treating practitioner recommending a more sustainable working pattern, which did not include the performance of work on a Sunday, no accommodations were made by the employer to support her mental health. 

Accordingly, in her application, the applicant contended that remaining in the role would harm her mental health, and she chose to resign.

The applicant's material included a detailed timeline, which set out a chronology of events supported by key correspondence, including a letter to her employer in March and a letter from the applicant's clinical psychologist to the employer in May.

Worker’s resignation letter 

The applicant gave evidence that she had been thinking about resigning for a couple of weeks prior to tendering the resignation letter, which statedthat,  after over six years with the employer, she had made the incredibly difficult decision to resign from her role effective immediately. 

The letter stated this decision had not come lightly, and for the past few months, she had done everything she could to avoid this outcome. 

The letter explained that all she had asked was to go casual so she could continue working while receiving the treatment and support needed for her mental health.

The letter stated that despite ongoing conversations, this reasonable request had not been supported, and instead, she was repeatedly told that she would need to resign for three months despite a letter from her doctor. 

The letter explained that over the past six months, she had raised concerns about the impact of Sunday shifts on her health and wellbeing and had politely and consistently asked to be removed from them with medical advice to support the request, yet she was told to either use annual leave or wait, and nothing changed.

Applicant used annual leave in place of stress leave

The letter stated that eventually she used five weeks of annual leave in place of stress leave because while she was struggling, there was no single incident that qualified under policy. 

The letter explained that experience, paired with what had felt like constant efforts to ask for help without meaningful change, had led her to this point, and she had lost a significant amount of annual leave that she would never get back. 

The letter stated that when she returned from leave, there was no check-in, just a text from a manager noting she had missed multiple shifts and asking whether she would be coming in.

The letter explained that while she understood the intent may not have been negative, it left her feeling that filling shifts mattered more than staff wellbeing and that made it incredibly hard to feel safe or supported in coming back. 

The letter stated she could no longer continue without the support and care that had been missing.

The letter noted that, even just this week, after notifying the team that she had an illness and could not attend her shifts, she still received multiple calls asking where she was, another reminder of the ongoing communication issues and lack of follow-up.

Resignation provided under email expressing sadness

The resignation letter stated the workplace had been a huge part of her life and she was proud of everything she had contributed over the years, grateful for the growth, relationships and opportunities she had there, and truly wished the team all the best moving forward. 

The letter explained this was a sad moment for her, but she felt it was the only thing left and asked how she could help support a smooth transition.

The applicant's resignation letter was provided under a covering email, which stated she wanted to thank the employer for the last six years at the company, and it was a shame it came to this.

The email stated she wished those above, under and beside her nothing but the best in all futures, and she really learned so much from this workplace and was sad to say goodbye. 

The email explained that there had been countless emails and calls she had sent that, unfortunately, had been ignored, so she really hoped this would get a reply of acknowledgement. 

After her employment ended, the applicant sent an email to the employer in which she made various allegations against it.

The email stated that while she had not intended to escalate the matter, she subsequently formed the view that she must explore further options to seek accountability and possible compensation for the harm caused.

Resignation was a voluntary decision, claims employer 

The employer submitted that the applicant's resignation was voluntary. It rejected that the applicant's resignation was forced or constituted a constructive dismissal as the applicant contended. 

The employer denied that there had been any action by it that caused the alleged termination or which demonstrated that it intended to bring the employment relationship to an end or which had that probable result. 

Rather, the employer submitted that it acknowledged and endeavored to address the applicant's request for a change to her roster, a request that was genuinely considered, including with respect to its twenty-four-hour, seven-day business needs.

The employer said that the applicant's own material made it clear that she made the decision herself to resign to prioritize her health and recovery, and invited the opportunity to assist in supporting a smooth transition following her departure. 

The FWC noted the sole question to be determined in this matter was whether there was a dismissal for the purposes of the Act. 

The FWC explained that the Act contains the meaning of dismissal and the applicant confirmed that she relied upon the second limb of that definition, being that she was forced to resign by the conduct or a course of conduct of the employer.

FWC examines the terms of resignation letter

The FWC observed that the terms of the applicant's resignation letter detailed her careful decision to resign in unambiguous terms. 

The FWC noted the resignation letter referred to the applicant's requests to be removed from working shifts on Sundays for reasons related to her health and wellbeing, and her disappointment that her return to work from a period of illness was not met with a check-in beyond a text message from her manager.

The FWC acknowledged that while it accepted that the applicant had mental health challenges, it was not satisfied that the applicant's evidence rose to a level that demonstrated that she was forced to resign by the employer's conduct. 

The FWC emphasized in particular that it was not persuaded that the employer declined the applicant's request for altered working arrangements with the intention of bringing the employment to an end, nor was it the probable result of its decision, which the employer contended was based on reasonable business grounds, having regard to the nature of its operations.

Resignation was voluntary and legally effective

The FWC added nor was it persuaded that the resignation was forced by the employer's neglect of the applicant in the manner described.

The Commission noted that the applicant's March correspondence to the employer set out the applicant's appreciation for the support provided to her and for the employer's understanding in granting the applicant unplanned leave. 

It observed that the applicant's letter further acknowledged the support of the company, which had been a great relief and a weight off her shoulders.

The FWC determined the applicant's resignation was voluntary and legally effective.

It stated the applicant's post-resignation complaint did not alter this conclusion. The FWC noted that at no stage did the applicant seek to withdraw her unambiguous resignation. 

The Commission concluded, for the reasons given, that it was satisfied on the evidence that the applicant was not dismissed. The FWC emphasized this being so, the applicant was not eligible to make an application under the Act and the application must be dismissed on this basis, dismissing the application.