The Fair Work Commission (FWC) recently dealt with an unfair dismissal application where the employer objected on the basis that no dismissal had occurred. The employer argued that the worker had voluntarily resigned from his employment rather than being dismissed, and therefore the Commission lacked jurisdiction to hear the unfair dismissal claim.
The worker argued that his employer had repudiated his contract of employment through a course of conduct that made his position intolerable, leaving him with no alternative but to resign. He claimed this included removing his fuel card, suggesting he look for other work, implementing an unfair performance improvement plan, and subjecting him to bullying behaviour from management.
The case examined the distinction between voluntary resignation and constructive dismissal, particularly where an employee resigns due to employer conduct. The decision demonstrates the high threshold required to establish that resignation amounts to dismissal at the employer's initiative.
The worker had commenced employment with the construction company in September 2023 in the position of office and accounts administrator. In December 2023, the worker was offered an alternative position elsewhere, but following this external offer, it was agreed that he would transition into a new role that allowed him to be involved in estimating work along with a salary increase. This transition took effect in April 2024.
The worker...
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