Willetts v BUMA Australia Pty Ltd [2024] FWC 277 (1 February 2024)

Facts

The employee resigned in August 2023 when his application to his employer for an excavator role was rejected.

The employee raised bullying complaints and filed a general protections application involving constructive dismissal, arguing that he was forced to resign. The employer’s objection was that the employee voluntarily resigned from his employment and they chose the best candidate for the role.

The employee claimed that the employer’s rejection of his application was its last act of unfairness in a sequence of false promises that he would be the next person for the role. The employee made many requests for promotion and worked hard to progress based on this “false hope”.

Findings

The Fair Work Commission (FWC) found that the employee deliberately resigned and expected that his decision and bullying complaints would have induced the employer to make him stay which did not occur.

The FWC considered whether the employer’s conduct forced the employee’s hand. It found that the employee had an alternative route of raising his concerns with the employer instead of submitting a resignation.  It also found that the employee had not followed all the steps of the employer’s grievance process set out in his employment agreement and that there was no evidence that he had raised any formal complaints regarding bullying and discrimination during his employment.

The FWC dismissed the employee’s general protections application because his failure to formally raise complaints with his employer did not result in a finding that he had “no effective or real choice but to resign”.

What is constructive dismissal?

Constructive dismissal or ‘forced resignation’ under section 386(1) of the Fair Work Act 2009 (Cth) is if the employee has resigned from employment but was forced to do so because of conduct engaged in by the employer.

The employee would need to establish that there was no other choice but to resign.

Lessons for Employers:

There are numerous examples where constructive dismissal can arise. Examples include when an employer has demoted an employee, changed their duties or reduced their pay or working hours.

Employers must not conduct themselves in ways that seek to isolate or put employees in a position where employees consider that their jobs are no longer viable and they have no choice but to resign.

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.