In the event of a constructive dismissal claim an employee must demonstrate that the employer has acted with the intent to bring the relationship to an end. In fact, the Fair Work Act 2009 (Cth) puts the onus on the employee to prove that they did not resign voluntarily and that their resignation was forced. In some cases, a forced resignation or constructive dismissal bullying claim can be challenging to prove, and without substantive grounds to support such a claim a constructive dismissal claim may be rejected.
Below we have shared an example of a case recently rejected by the Fair Work Commission.
McKeran v Red Energy Pty Ltd: Constructive Dismissal Claim
It can at times be challenging and extremely difficult to prove a forced resignation in a constructive dismissal claim. The Fair Work Commission demonstrated this ‘high bar’ in McKean v Red Energy Pty Ltd [1], despite the employee feeling they had no other choice but to resign from their position.
In this instance the Fair Work Commission (FWC) rejected the employee’s argument that he was forced to resign because of his employer’s actions. As such the Fair Work Commission upheld the employer’s jurisdictional objection to the employee’s unfair dismissal application that he was not “dismissed”.
BACKGROUND
In the case of McKean v Red Energy Pty Ltd the employee, based in Victoria, lodged a claim for unfair dismissal. The employee claimed his employer forced him to work from home despite him being unable and unequipped to conduct work from home. Further arguing he did not have ‘the appropriate equipment necessary to carry out his work from home. In this instance the equipment shortfall was a desk to work from. Furthermore, the employee contended that the company’s conduct, namely its refusal to provide or pay for a desk, or to grant him leave or allow him to work from the office, and its failure to consider his personal circumstances, left him no reasonable choice but to resign, and that the company ought to have realised this.
Deputy President Colman, of the Fair Work Commission (FWC), rejected the employees’ contention, labelling the resignation as a “position of principle”. This was due to the employee feeling he shouldn’t be required to spend his own money to buy a desk. Deputy President Colman held that the employee could have sought a cost-effective desk for the purpose of conducting the inherent requirement of his role from home. Deputy President Colman further argued that since lodging his unfair dismissal claim, the employee had purchased a table and so on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced the employee to resign.
OUTCOME
As a result of the employees ‘position of principle’, Deputy President Colman, found that the employee freely chose to resign. The employee’s letter of resignation made no reference to compulsion because none existed and he had several various alternatives available to him, which the Fair Work Commission examined. Most obviously, the employee could have bought a desk or sought alternatives such as borrowing a desk from a friend. The employee could have also asked for a shorter period of leave or contacted WorkSafe about his safety concerns but failed to do so. In this regard, Deputy President Colman, found that the employee had decided instead to bring his application in the Fair Work Commission. That was his choice. The employee was held not to have been forced into resigning and the application was dismissed.
Satisfying the constructive dismissal test
This case demonstrates the difficulty in succeeding in a claim of constructive dismissal. The Fair Work Commission has highlighted the importance of examining all alternative options available to an employee, before a firm decision is made to resign. Whilst it is your application, the onus is on you to prove the resignation was forced, in order to satisfy the test of constructive dismissal, as it was you who ended the employment relationship.
Employees must ultimately demonstrate that the employer has taken action with the intent to bring the relationship to an end or that has that probable result.
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ReferenceS
[1] [2020] FWC 5688.
