Employers beware of forced resignations
Posted on June 28, 2018
In Choukrallah-Kazemi v Singapore Airlines Limited [2018] FWC 2277, an employee made an application to the Fair Work Commission (FWC) claiming that he was forced to resign from employment with Singapore Airlines Limited (SAL).
The employee claimed that a contraction in his role from a national one to one that was Sydney specific constituted a significant demotion and a repudiation of the contract of employment.
SAL submitted that the employee was not “forced” to resign because he was transferred to a new role of equivalent status and continuity of service.
Under section 386(1) of Fair Work Act 2009 (Cth) (FW Act), a person has been dismissed if:
- "the person’s employment with his or her employer has been terminated on the employer’s initiative; or
- the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The test for forced dismissal is “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the result of the employer’s conduct such that the employee had no effective or real choice but to resign.”[1]
The onus is on the employee to prove that they did not resign voluntarily. The employee must prove that the employer forced their resignation and took action with the intent to bring the relationship to an end or had that probable result.
In the present case, the FWC ultimately found that the employee’s job function was varied consistent with his skills, qualifications and experience. The FWC also said:
“Even if I am wrong in this regard it is to be noted that, an employee has not been dismissed if they were demoted in employment and the demotion did not involve a significant reduction in their remuneration or duties, and they remain employed with the employer that effected the demotion.”
The FWC concluded that SAL’s conduct did not give rise to circumstances that amounted to a dismissal within the meaning of section 386(1)(b) of the FW Act, noting that there was no absence of effective or real choice.
Whether an employee was forced to resign depends on the facts and circumstances of each case.
Common examples of forced resignations include:
- An employee resigns because they have been told to do so by their employer after being threatened with dismissal;
- An employee resigns because they are given the choice of resignation or facing an investigation after being accused of wrongful behaviour in the workplace;
- An employee resigns because they have no other reasonable choice and they are unable to continue with their employment for reasons such as bullying, poor treatment or safety concerns;
- An employee resigns because they are not being paid their salary or superannuation payments; or
- An employee resigns because their employer unreasonably refused their request for flexible working arrangements.
Employers must also be careful when transferring employees to new positions, especially if it results in a significant diminution of status or responsibilities.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice in relation to your workplace.
[1] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941.
