Overview of the facts

The employee was the head chef, a position she held for some two years. In September 2019, the employee was informed she needed to reduce costs as the business was not profitable. Later that month, the bistro received complaints regarding the quality of food and wait times. In October 2019, another chef was employed. On 6 October 2019, the employee was not rostered to work, however the bistro contacted the employee asking her to help; it was the rugby league grand final and it was very busy. The bistro arranged for a courtesy bus to collect the employee who had consumed alcohol and unable to drive. The employee didn’t cook or provide assistance in the kitchen, instead she served customers on the cash register, processing refunds.

On 9 October 2019, the manager met with the staff member and advised she would face disciplinary action if she repeated her conduct, namely attending work after consuming an alcoholic beverage. Importantly, the employee maintained she was not drunk. 

In November 2019, the bistro advertised for a full time, head chef. One of the employee’s family members called the business to enquire about the position. In response, the manager confirmed it was the head chef role. The employee sent a text to the manager asking if he was looking to replace her, to which she received no response.

The employee took annual leave, returning on 1 December 2019. Upon her return, she believed “things were not as they seemed,” and after questioning members of the business, she was informed the bistro had told staff and patrons she had left her role and that the position had been given to another staff member. 

On 4 December 2019, the employee was invited to come to work for a “chat.” The employee contends during the conversation she was informed the “business relationship was over” and that she would not be sacked. However, it was also made known that it was up to her whether she stayed or went, and if she stayed it would be under the manager’s terms and conditions.

Immediately after the discussion the employee sent text messages to her partner and daughter. The manager denied the employee’s account of the conversation and instead maintained he asked the employee if she was leaving, as he was aware that she had applied for two other roles. 

Later that evening, the manager attended the workplace and informed another worker he had been given the employee’s head chef role. The worker informed the employee of this decision. On 6 December 2019, the manager told the worker he had instructions from the owners to terminate the original head chef’s employment. The worker informed the employer who subsequently sent an email stating, “This is a letter of resignation as of today Friday 6 December; I give two weeks' notice.” The employee did not present for work as she provided a medical certificate stating she was unfit for the entirety of the notice period. 

The employee made an unfair dismissal claim stating she was constructively dismissed as she had no choice but to resign. 

The Decision

When determining whether a resignation was forced, in accordance with section 386(1)(b) of the Fair Work Act 2009 (Cth) (“Act”), the test to be applied is “whether the employer engaged in the conduct with the intention of bringing the employment to an end, or whether the termination of the employment was the probable result of the employer’s conduct, such that the employee had no effective or real choice but to resign.”

The business contended the employee was underperforming in her role and supplied a diary entry stating, 'We continue to lose money’ and ‘I had had a lot of complaints regarding her attitude & poor behaviour.’ The bistro also claimed when they advertised for a head chef they were in fact seeking a chef to deputise the employee. While the Commission accepted the business was not performing well, the Commission did not accept its submissions in respect of the employee’s performance or the intention behind the job advert. Having regard for the circumstances leading up to the employee’s resignation, the Commission found the worker had “no effective or real choice but to resign.” The Commission was satisfied the employee had been dismissed within the meaning of section 386 of the Act. 

The Commission considered the business had failed to provide the employee with adequate warnings or engage in performance management. Given this, there was no valid reason for the dismissal and the dismissal was ruled unfair. 

The Commission determined the worker was owed $2,811.66 in compensation. In calculating this sum, it noted the business had indicated in its evidence that had the employee not resigned and anticipated her remaining in the position until March 2020. The Commission calculated the remuneration the employee would have earned in that period and deducted the remuneration received from alternative employment. 

Lessons/Learnings

This case demonstrates even though an employee has apparently resigned, they can still raise, and succeed in an unfair dismissal claim. If a business is not satisfied with the performance of an employee, a robust performance management process should be undertaken. A business cannot take action to force a resignation and rely on that to argue the employee was not dismissed.  

How we can assist

This case highlights the importance of performance management and the risks involved in engaging in behaviour which makes an employee feel that they have no choice but to resign. Had the manager called the Victorian Chamber of Commerce and Industry’s Workplace Relations Advice Line and accessed our performance management policies, plans and warning templates, the business would have had the knowledge and resources to correctly manage the employee. Complete Members have unlimited access to the Advice Line as part of their membership. Networker and Essentials members are welcome to utilise their free calls (one per Networker membership and two per Essentials membership) to speak to our knowledgeable advisors during what is a very challenging time for business. 

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

Written by Ashlee Edwards, Graduate Workplace Relations Advisor. 

[2020] FWC 2248 -  PR718693