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Involuntary resignations – when ‘no’ does NOT mean ‘no’

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A recent unfair dismissal case provides a good example of how not to ‘performance manage’ an employee.  The employee had resigned in circumstances where the AIRC ultimately held that the resignation resulted from intolerable working conditions, imposed as a penalty as a result of disciplinary proceedings.  The employee was the office manager of the Lismore branch of Australian Hearing, an Australian Government hearing service provider.  She had commenced employment in 2005.

In January 2008, the office manager was removed from an Acting Regional Manager position under allegations of misuse of confidential information.  She was subsequently involved in disputes with the replacement Regional Manager and other employees and took stress-related sick leave.

In March 2008, the employer instigated a disciplinary inquiry under the Australian Hearing Collective Agreement resulting in the employee’s transfer to the Ballina office.  She was provided with a hire car for the 64 kilometre round trip.

In October 2008, an email was sent to the technician at her former Lismore office, stating that it was lonely at Ballina and adversely commenting on the Lismore office as a workplace.  This resulted in a further disciplinary inquiry for attempting to undermine her employer, which in turn resulted in further stress-related sick leave.  As a result of this inquiry, her employer threatened the withdrawal of the hire car and a response was sought from her whilst she was still on sick leave.  She resigned her employment in November 2008, prior to her scheduled return from sick leave, stating that the resignation was “ … due the high level of stress I am experiencing at work”.

Not surprisingly, the AIRC rejected the employer’s argument that the termination was not at the initiative of the employer.  The AIRC held that the course of conduct of the employer was intended to bring about the resignation of the employee.  The employer had isolated the employee 32 kilometres from her residence and threatened to remove her means of transport.  She was required to attend six sessions of psychological counselling and mediation before she was eligible to return to her position as Lismore manager.  The ‘icing on the cake’ was the requirement to respond whilst on stress-related sick leave.

It can be frustrating for employers who attempt to discipline employees leading to stress-related sick leave.  They must, however, appropriately differentiate between performance management for under performing employees and punishment for internal spats in the workplace.  In circumstances where an employee is on stress-related sick leave, allow sufficient time, after the return to the workplace, for appropriate consultations to be undertaken.  This may lead to an understanding of the issues and avoid the need to threaten the imposition of punishment.

Our Workplace Relations team can advise you on all aspects of disciplinary actions and to ensure that you do not leave yourself exposed to AIRC penalties.

Author: Charles Cody