“If you don’t resign you will be terminated!” This kind of statement leaves the employer quite exposed to costly legal proceedings even if that employee decides to take the resignation ‘option’.
Yes – they did resign but was it actually their decision?
Given this ultimatum – No.
Under the Fair Work Act, an employee resigning in such a manner, due to the ultimatum presented by the employer, can lodge a claim for unfair dismissal as if the employer had terminated them directly. This is classed as a forced resignation.
Section 386 of the Fair Work Act provides that an employee will be deemed to have been unfairly dismissed if the person resigned from their employment but was compelled to do so due to the conduct or actions initiated by their employer. The Fair Work Commission, looking at the circumstances, will determine whether the conduct forced the employee to resign or terminate their employment.
Such conduct can include the words spoken above “If you don’t resign you will be terminated!” or it can occur more indirectly in the workplace. This can include:
- Did their manager increase the employee work pressure to stress them into resigning?
- Was the employee sexually harassed and nothing was done about it (after complaining) leaving them no option but to resign to escape the harassment?
- Was the workplace toxic towards the employee in some other way making it very stressful?
These types of situations can become quite complex with lots of questions being raised about what are ‘legitimate managerial decisions/actions’ and what options the employee had - other than to resign.
Where it gets really messy is where you are managing the outcomes of a poorly performing employee (potentially working at their limit) who then claims they were pressured into resigning. Some employees state they felt they had no option but resign because they felt stressed with their increasing workload.
Often the employer is not aware of pressures at home adding to the employee's overall stress.
It is important for employers to be consciously aware of employees in such pressure situations as outlined above.
Additionally, I would strongly recommend against dealing with difficult employees by forcing them to leave. Given this is such a grey area with unpredictable Commission hearing outcomes there are more straightforward formal approaches that should be utilised.
Hunter Employee Relations understands the frustrations and complexities around warning processes and how difficult it can be to terminate some employees. Please contact me for assistance in determining the best path forward to resolve such matters.
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Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Industrial Relations - Employment Law - Workplace Performance
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