FWC rules on privacy boundaries in constructive dismissal claim
The Fair Work Commission (FWC) recently dealt with a case examining whether a worker's resignation constituted a constructive dismissal under section 386 of the Fair Work Act 2009.
The worker filed an application claiming she had no choice but to resign after facing what she described as unacceptable conduct following her return from parental leave.
The application challenged the validity of various workplace actions, including the reduction of duties after parental leave, performance management approaches, and the employer's handling of medical certificates. The worker argued these actions created an untenable work environment.
The case required the FWC to determine whether the employer's conduct effectively forced the resignation within the meaning of section 386(1)(b) of the Fair Work Act 2009.
The worker joined a technology company in September 2017 as a personal assistant before advancing to executive assistant and office manager roles. In March 2023, she returned from parental leave to work part-time, starting at 2.5 days weekly before increasing to 3.5 days.
An initial dispute arose over duty allocation. While the managing director acknowledged taking on some of her previous responsibilities due to her reduced hours, the worker viewed this as an unfair reduction in her role.
On 8 July 2024, a critical meeting occurred where the managing director raised concerns about the worker's trustworthiness regarding an unauthorised farewell lunch for a departing colleague. The worker took annual leave immediately after this meeting, citing wellbeing concerns.
During her leave period, which extended from July to September 2024 through medical certificates, communications deteriorated. The managing director demanded to speak directly with her doctor and requested new medical certificates from different practitioners.
In reviewing this conduct, the FWC stated: "[The worker's] treating practitioner is not obliged nor permitted to discuss her medical condition with [the manager], unless [the worker] expressly agrees to such a discussion being had."
The FWC further noted: "The [employer] is, of course, not medically qualified to make such an assessment about the validity of a medical certificate. [The worker] was rightly concerned by the [employer's] request to provide another certificate from 'a random' doctor."
The case turned on section 386(1)(b) of the Fair Work Act 2009, which defines when a resignation amounts to dismissal. The Full Bench of the FWC had previously established that this requires examining whether an employer's conduct left a worker with no real choice but to resign.
The FWC acknowledged that performance discussions can be challenging but remain legitimate: "While it can be an uncomfortable experience to be involved in performance-related discussions, it is nevertheless appropriate for these conversations to take place when performance issues arise."
In considering the evidence, the FWC examined both the July meeting and subsequent events to determine whether they constituted conduct that forced the worker's resignation.
The FWC ultimately determined that despite workplace tensions, the resignation was voluntary. In its decision, the Commission stated:
"While the events from 8 July onwards and the deteriorating relationship and loss of trust between the parties may have motivated [the worker] to resign, I find that she did so at her own initiative."
The decision explained: "When objectively viewed, there is not a sufficient casual connection between [the employer's] conduct such that it left [the worker] with no real choice but to resign."
The FWC concluded by noting alternative options had been available: "From the evidence, I believe that [the worker] had other options available to her, instead of resignation, such as returning to work and participating in performance discussions with [the manager] about valid concerns he raised as her direct report." The Commission upheld the jurisdictional objection and dismissed the application.