The Fair Work Commission (FWC) cannot entertain an unfair dismissal claim unless the termination of employment was at the employer’s initiative. In a recent decision, Davidson v Qube Logistics Vic Pty Ltd T/A Qube Holdings [2018] FWC 4481, the claimant was unsuccessful in asserting that the cessation of his employment was a dismissal attracting the Fair Work Act 2009 (Cth) unfair dismissal jurisdiction. The claimant alleged he was forced to resign due to the conduct engaged in by his employer by initiating an investigation into his misconduct.

Background

The claimant was a truck driver with 6 years of service. During a conversation with the transport operations manager, it is alleged the employee made a number of offensive comments. The transport operations manager made a complaint about the employee, alleging that the employee had said the ratio of Indian staff in the workplace was “distorted” and that there was “potential nepotism” in relation to employees of Indian background.

The employee attended a meeting on 26 February 2018 regarding the complaint made by the transport operations manager. During the meeting, the employee was told by his manager that he was being stood down on full pay during an investigation into the complaint made against him. The employee responded by stating he wished to “pull the pin”. Amongst other factors, the employee relied upon the fact that prior to being stood down, he had learned that another employee had refilled the fuel tanker (which he perceived as part of his role). He said that this indicated a decision to terminate his employment had already been made and the investigation was a “sham”.

The evidence of the employer was that on at least two occasions during the conversation, the employee used words to the effect of “I’m resigning”. At the end of the conversation, the employee shook hands with his manager, which the manager took as an unequivocal indication that the employee intended to resign of his own volition.

Legal principles

To establish a resignation was “forced”, a claimant must show the employer’s conduct was a sufficient operative factor in the resignation, or intended to bring the employment relationship to an end, or had the probable result of bringing the employment relationship to an end.

The claimant argued the principal contributing factor leading to the termination of his employment was the actions of the employer in initiating the “sham” investigation. The employer said that the sequence of events could not reasonably be considered a constructive dismissal and it had only initiated the investigation process to establish the veracity of the complaint made against the employee.

Decision

The FWC ruled that:

  • the employee did not have a reasonable basis for his belief that the investigation into his conduct would be so flawed that he had no real option but to resign
  • the employee had never participated in an investigation before and it was explained to him that the employer’s policies would be followed to ensure a fair and impartial investigation
  • by placing the employee on full pay during the investigation process the employer had indicated that it would act in accordance with its policies and the workplace agreement applicable to the employee, which should have removed any doubt from the employee’s mind about a predetermined outcome.

Therefore the unfair dismissal claim was dismissed on the basis that the termination of employment was not at the employer’s initiative.

Lessons for employers

It is not uncommon for an employee that is faced with allegations of misconduct to resign from their employment when informed about a potential investigation.

Employers should ensure that any resignation is given freely and not in “the heat of the moment”. You should assess whether the employee has unequivocally intended to resign from their employment. If uncertain or the circumstances indicate the employee is distressed due to the allegations of misconduct, then the employee should be given more time to consider their options. It is also helpful to request that the resignation be provided in writing before it is accepted.

Further, requiring that an employee be “stood down” from their employment during an investigation is significant. It should be reserved for cases of serious misconduct or where there is a risk witnesses or complainants will be victimised.