Conduct of your employer

A hotel worker has argued to the Fair Work Commission that she was forced to resign due to comments her manager made. In her adverse action claim, she detailed how her manager had made comments about her facial piercings. And for ordering a uniform that was too big for her.

The worker also claimed she was forced to resign due to other conduct by her manager, including spelling her name wrong in an email. Proving to the Fair Work Commission that you were forced to resign, otherwise known as a constructive dismissal, is often difficult. It requires proving that you had no other recourse but to resign due to the conduct of your employer. In this article, we share how the Fair Work Commission considered the hotel worker’s argument of forced resignation. But first, we look at what it means to be forced to resign or constructively dismissed.

What is constructive dismissal or forced resignation?

The concept of being forced to resign, or a constructive dismissal, often perplexes both employers and employees alike. This term refers to a situation where an employee resigns from their job, yet it is treated as if they were dismissed by their employer. In essence, it is a form of resignation against one’s own will.

To establish a constructive dismissal or forced resignation, the burden of proof typically rests on the employee. They are required to demonstrate that their employer breached a fundamental aspect of their employment contract, leaving them no option but to resign. The employee must also show that resignation was the last and only reasonable course of action.

Understanding constructive dismissal and forced resignation

Constructive dismissal occurs when an employee resigns due to their employer’s conduct, which effectively forces them out of the job. In such cases, the employee maintains that their resignation was not of their own volition but was compelled by the actions or omissions of the employer. To prove constructive dismissal, several criteria must be met:

1. Breach of employment contract

The employer’s conduct must represent a substantial breach of the employment contract or involve unauthorised changes to the contract’s terms. This could encompass various situations, such as significant reductions in pay, unwarranted demotions, unreasonable relocations or detrimental changes to working conditions.

2. Lack of alternatives

The employee must demonstrate that they had no real alternative but to resign. In other words, resignation must have been the last, reasonable option left available to them.

3. Employee was forced to resign

The employee must establish that the employer’s actions were the primary factor leading to their resignation. The employer’s behaviour must be the driving force behind the employee’s decision to leave.

Legislation for constructive dismissal and forced resignation

The Fair Work Act 2009 defines dismissal under section 386(1), offering two scenarios. The first is that the person has been dismissed at the employer’s initiative. The second is that the person has resigned due to conduct or a course of conduct by the employer. This second scenario is what is otherwise known as a forced resignation or constructive dismissal. Recognition of such a scenario under the Fair Work Act 2009 therefore entitles workers to certain rights, such as the ability to claim unfair dismissal.

Common scenarios leading to constructive dismissal

Constructive dismissal or forced resignation can take various forms and is often triggered by detrimental actions or environments in the workplace. Here are some common scenarios that may give rise to constructive dismissal or forced resignation claims:

1. Bullying and Harassment

When an employee faces persistent bullying or harassment at work, either from colleagues or their employer. And the employer fails to address the issue adequately, the affected employee may have no choice but to resign.

2. Unreasonable Changes

If an employer makes significant and unreasonable changes to an employee’s working conditions, this could be considered a constructive dismissal or forced resignation. This could include such things as imposing longer working hours or altering essential job responsibilities without consent.

3. Demotion

A demotion that involves a substantial reduction in an employee’s remuneration or responsibilities may also constitute a constructive dismissal or forced resignation. This is particularly the case if the demotion is unjustified or not in accordance with the employment contract.

4. Withholding benefits

When an employer withholds benefits or entitlements that the employment contract stipulates, it can force an employee to resign. This could include withholding entitlements such as company cars or bonuses.

5. Threats of dismissal

Employers who threaten to dismiss employees unless they choose to resign create a situation where resignation becomes the only apparent option, potentially leading to constructive dismissal claims.

6. Removal of essential tools or materials

If an employer takes away essential equipment, access or materials required for an employee to perform their job effectively, it can be viewed as a form of constructive dismissal.

Proving constructive dismissal or forced resignation

To establish a case of constructive dismissal, the onus falls upon the employee to demonstrate that the employer’s actions or behaviour were the principal contributing factor that forced their resignation. This can be a complex and fact-specific process. It necessitates showing that resignation was the last resort due to the employer’s actions or the work environment created.

Hotel worker claims forced resignation due to manager’s comments

In the adverse action case Skye Lillian Baker v The Trustee For The Hotel Property Trust No. 2, the Fair Work Commission was tasked to decide if the worker was forced to resign. However, the reasons that the worker argued forced her to resign were not very compelling.

The employee, Skye Lillian Baker, began working for Pier 21 Apartment Hotel on 23 September 2022 as a Guest Service Agent. She was answerable to the Front Office Manager, Vhic Dunn. On 10 November 2022, Ms Baker made a verbal complaint to a senior manager about Ms Dunn’s behaviour. Specifically, about comments she made concerning her piercings. And for ordering a uniform that was too big for her. She said that these comments had made her feel uncomfortable.

Ms Dunn was within earshot while Ms Baker made the complaint. And as such, she went over to Ms Dunn and took her into an office to apologise to her. The senior manager heard Ms Baker raise her voice as she entered the office. It was later learned that Ms Baker did not accept her apology, as she felt that Ms Dunn was not genuinely sorry. The senior manager attempted to tell Ms Baker that Ms Dunn was proud of her work. And he implored her to accept the apology so that she could “move on”.

Employee outlines manager’s behaviours that forced her to resign

Ms Baker told the Fair Work Commission that in the weeks following her meeting with Ms Dunn, their relationship deteriorated. She outlined a list of poor behaviour of Ms Dunn that ultimately led her to be forced to resign. This included that Ms Dunn would not allow roster requests made by Ms Baker. That Ms Dunn would text her on her days off and would not reply to texts. And that Ms Dunn did not provide her with adequate training and development.

Employee claims she was forced to resign due to manager’s conduct

In December 2022, Ms Baker made another complaint about Ms Dunn to the senior manager. This time, she complained that she had misspelled her name in an email. She also raised the issues that she previously complained about a month prior.

On 9 January 2023, Ms Baker met with the senior manager again. She told him that she was not happy with Ms Dunn’s conduct. And that she was considering leaving Pier 21. Then on 25 January 2023, Ms Baker asked the senior manager if he could be a referee for her. She said that she wanted to find another role that paid more, because she was building a house. The senior manager provided a reference for Ms Baker on 3 February 2023. Ms Baker then resigned as she had been offered a new job. Her employment with Pier 21 ended on 6 February 2023.

Employer argues Ms Baker was not forced to resign

Pier 21 initially raised a jurisdictional objection to the adverse action claim. It argued to the Fair Work Commission that Ms Baker had not been forced to resign. But rather, she had voluntarily resigned to pursue another job opportunity offering higher pay.

Pier 21 contended that there was no proof to back up Ms Baker’s allegations of being forced to resign. The company acknowledged that Ms Baker had raised concerns about Ms. Dunn’s behaviour. But it claimed that these issues were addressed. And therefore, Ms Baker’s resignation was not a result of any sustained or deliberate conduct by Pier 21.

Employer makes her forced resignation argument to Fair Work Commission

In contrast, Ms Baker argued to the Fair Work Commission that her resignation was compelled by Pier 21’s actions. She alleged that Ms Dunn’s comments, particularly about her appearance, had created an uncomfortable work environment.

Ms Baker further contended that Pier 21’s response to her complaints was inadequate, leading her to feel unsupported. To the Fair Work Commission, she outlined the list of behaviours of Ms Dunn that she claimed were problematic.

Was she forced to resign? Fair Work Commission reviews and decides

The task for the Fair Work Commission was to determine whether Ms Baker’s resignation resulted from conduct or a course of conduct by Pier 21. And that this effectively left her with no other option but to resign. The line between voluntary resignation and forced resignation is indeed narrow, as established by precedent.

The Fair Work Commission accepted that prior to her resignation, Ms Baker was “not happy” with her manager and was experiencing what she perceived as a “lack of support from [Pier 21.” It recognised that Ms Baker had not been happy with the apology given to her by Ms Dunn. However, it was found that Ms Baker had “accepted the apology” and “made no efforts to facilitate a better interpersonal or working relationship”.

Manager’s conduct not enough to force resignation

The Fair Work Commission did not accept that the list of behaviours Ms Baker highlighted were sufficient evidence that Pier 21 “engaged in conduct which left [Ms Baker] with no alternative but to resign.” The Fair Work Commission was “not satisfied” that the behaviours “constitute offensive or targeted behaviour.” But rather, they were the product of “deficiencies in the attention to detail and organisational skills of her manager.”

With respect to Ms Dunn’s comments about Ms Baker’s piercings, the Fair Work Commission sided with the former. It found that the comments were “hurtful in their effect.” However, they “did not rise to the level of conduct that would leave [Ms Baker with no alternative but to resign.”

The Fair Work Commission acknowledged that Ms Dunn, as well as Pier 21’s senior management “made attempts to better the relationship between herself and [Ms Baker].” It also noted that the comments had not been endorsed by Pier 21. And that the company had made a “genuine attempt to assist the resolution of [Ms Baker’s] complaint and encouraged the two employees to make up.”

Fair Work Commission rules that there was no forced resignation

Ultimately, the Fair Work Commission ruled that Pier 21 had not acted in any manner that left Ms Baker with no alternative but to resign. It therefore found that she had voluntarily resigned. Not satisfied that Ms Baker had been dismissed, her adverse action claim was therefore rejected on jurisdictional grounds.

Conclusion to: Forced to resign over piercings, body size comments

If you have been forced to resign, unfairly dismissed or experienced adverse action, call us at A Whole New Approach. We can make it easy for you to make a claim via the Fair Work Commission to hold your employer accountable.

Over 16,000 Australian workers have sought our help to take action through the Fair Work Commission and other tribunals.. AWNA are not lawyers, what we do have is 25 years of fighting daily for employees across Australia. We know the system and have a reputation amongst employers for getting results. Our service is based on a contingency fee arrangement, meaning you only pay if we succeed in your case. Plus, your initial consultation with us comes at no cost to you.

Feel free to reach out to us today at 1800 333 666 to access the support and expertise necessary to address your situation.

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