When is an Employee’s Resignation Freely Given?

The Fair Work Commission has found that a carpenter who alleged he was forced to resign for his own safety after a company director threatened to “take” his liver did so of his own volition.

In Bupa Aged Care Australia Pty Ltd v Tavassoli a Full Bench of the Commission considered the law on resignation and stated that, in considering whether a resignation is ‘forced’ for the purposes of unfair dismissal law, the test 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 probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.’

The Commission reached this conclusion after hearing evidence from the carpenter that the director (who worked as the company’s production manager and was of a non-English speaking background) confronted him on a Friday morning and allegedly said, quietly and close to his face, “I know what you f—ing said in the lunchroom, next time I take your liver,” while pointing to his abdomen.

The carpenter called the company’s office manager and asked that the company take immediate disciplinary action against the director. The office manager told the carpenter that the incident would first have to be investigated, calling him back shortly afterwards to confirm that an internal process had been started and suggesting he go home for the day.

During the conversation, the carpenter informed the office manager that he intended to resign. Within the day the company had determined that although the director’s actions did not represent an actual threat to the carpenter’s safety, his inappropriate behaviour warranted a one-week suspension without pay.

The carpenter did not attend work and sent a message to the office manager to say that he was resigning with two weeks’ notice, “as I believe (the company) is not providing me with a safe place of work”.

The next day the office manager replied to say there was no need to work his notice period, that he would be paid out in full, and that “the incident involving [the director] has been taken very seriously and he is currently suspended until further notice”.

The carpenter told the Commission he had no choice but to resign because he feared for his life and the safety of his family, as the director had access to his home address, and the company did not respond appropriately. The company submitted that neither its, nor the director’s conduct, forced the carpenter’s resignation, and that he chose to resign.

The director also contested the carpenter’s version of the exchange, but the Commission held that while accepting the carpenter was “very upset” by the director’s words and the company was right to discipline him, the Commission said it was equally clear the director was genuinely surprised by the carpenter’s reaction to a statement that would not be considered particularly offensive in the Russian language.

Viewed objectively, the Commission said:
I do not consider that…. the circumstances of the exchange… would cause a reasonable person to apprehend a real threat to their life or safety”…the words spoken were akin to a throw-away line, such as ‘I’ll knock your head off’…I appreciate that [the director’s] reference to [the carpenter’s] liver is unusual in the ear of a native English speaking person, and carries perhaps a somewhat sinister tone. But I do not accept that it could reasonably be thought that [the director] was going to harm [the carpenter], let alone [his] family…Further, even if I had preferred [the carpenter’s] account of the words used by [the director], I would have found that the expression ‘I will take your liver’ or words to that effect could not reasonably be taken literally in the circumstances… It would plainly have been a metaphorical statement, conveying a negative or angry sentiment, not a literal statement reflecting an actual intention.

Considering whether the carpenter was forced to resign, the Commission said it was “difficult to accept” he genuinely believed his life or safety were at risk, and there was no rational basis if he did.”Resignation was not the probable result of the company’s conduct or that of [the director] .”

As to the carpenter’s contention that the company did not take his complaint seriously, the Commission said that, rather, it was clear that it did.

Whatever misgivings [the carpenter] might have had about how seriously the company would take his complaint, they were plainly unfounded… The company took immediate action to investigate his complaint and took quick and appropriate disciplinary action against [the director]… Less than two full working days elapsed between [the carpenter’s] exchange with [the director] and the email containing his resignation… It was, on any view, a hasty resignation.

Taking all of these circumstances into account, the Commission concluded that the carpenter’s resignation was of his own volition.