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  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.
The claimant was a truck driver with six 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.
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.
The FWC ruled that:
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 who 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'. They 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 the witnesses or complainants will be victimised.
Authors: Charles Power & Lauren Drummond
Charles Power, Partner
T: +61 3 9321 9942
Michael Selinger, Partner
T: +61 2 8083 0430
Rachel Drew, Partner
T: +61 7 3135 0617
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Published by Charles Power, Lauren Drummond