Are disciplinary proceedings enough proof of 'forced resignation'?
The Fair Work Commission (FWC) recently dealt with a worker’s claim that she was forced to resign after undergoing a safety incident investigation at the workplace, however, the employer argued that she resigned on her own initiative.
The worker was employed by Action Drill and Blast Pty Ltd as a serviceperson at the Karara mine site. Around April 2023, the maintenance supervisor of the employer reported a safety incident to the project manager.
The former reported that the worker had prepared a drill rig for its daily service by isolating it (de-energising), but she failed to attach her personal serviceperson danger lock and tag to the isolation point before starting to refuel the drill rig.
Due to the risks of the incident, the employer started an investigation and found that safety procedures had been violated.
On 24 April 2023, the employer sent a letter to the worker informing her that she was placed on paid Stand Down while further investigation was conducted.
After a few days, the employer sent another letter to the worker outlining the allegations against her. The letter provided options for her to either attend a meeting or submit a written response, and also informed her about the potential consequences if the safety protocol breach was proven.
A meeting was scheduled with the worker to provide her an opportunity to respond in May 2023, and subsequently, an “outcomes meeting” was performed to discuss the investigation’s findings. After this meeting, the worker chose to resign.
Are disciplinary procedures enough proof of ‘forced resignation’?
The worker acknowledged that disciplinary procedures alone aren’t adequate evidence of forced resignation, “nor does advice that employment may be terminated as a result of those processes.”
However, according to the Commission’s observation, the worker said “that her own experience had been that as she was expressly informed she was terminated, encouraged to resign and presented with no other options, the termination had been the [employer’s] initiative.”
Meanwhile, the employer argued that the worker chose to resign and that it wasn’t true that she had no alternatives. It said the investigation process was conducted properly and was not the sole reason for her resignation.
Additionally, the employer clarified that their process was incomplete, as during the "outcomes meeting," the worker was informed that she could provide reasons against her termination, which would be considered before a final decision was reached.
“Instead of doing so, the employer submitted that the worker chose to resign, as this would assist her when seeking alternative employment,” the employer said.
HRD previously reported about an unfair dismissal case involving a worker who argued he was dismissed from work after a heated conversation with his employer. In another case, another employee cried foul after saying she was “fired in the middle of a meeting.”
The Commission’s decision
The FWC noted that the worker said the resignation was “given in the heat of the moment,” since it said she “raised the issue of resignation on two occasions prior to the meeting on 8 May 2023.”
It also highlighted the employer’s internal process during an investigation and why it did not result to her immediate termination.
“[The employer's] process has two distinct stages. The first is to give the employee an opportunity to respond to an allegation against them. From this response, the [employer] determines if the employee is indeed guilty of the alleged misconduct. If not, the process presumably ends there,” the Commission said in its decision.
“However, if as in the case of the [worker] the employee is indeed guilty, then the [employer] moves to the second stage and considers what is an appropriate outcome. If that outcome could mean termination, then the [employer] advises the employee that they are considering termination but giving the employee a chance to make any submissions they wish as to why this should not occur.”
The FWC said that she might likely be fired unless she had a valid explanation after the safety investigation but said the meeting that was called to discuss the safety report did not end her employment.
“It is likely that the [worker’s] employment would have been terminated unless she provided some substantial reason or reasons why termination should not proceed,” it said.
“However, I do not accept that she had no choice other than to resign at the point of time at which she did, as the [employer] was undertaking a process that was offering her an opportunity to address termination and make any pleas in mitigation that she so chose,” it added.
Thus, the FWC concluded that the worker was not forced or threatened to resign.
