Redundancies and forced resignations explained
What if you as the employer did not intend for the employee to resign?
That is not relevant. The Fair Work Act is concerned with what the employee thinks, not the employer. So if the employee believes the employer’s actions were intended to force their resignation, then that is sufficient reason to lead to an allegation of unfair dismissal, even if that was not the employer’s intention.
What action should an employer then take?
To minimise the risk of an allegation of a forced resignation an employer should avoid the following conduct:
- Not following obligations under any agreements or company policies when dealing with a disciplinary issue
- Acting in a threatening/bullying manner or imposing unreasonable conditions on the employee under investigation including such things as:
- forcing the employee to transfer to a temporary role and not returning them to their previous role after the agreed period of time for the transfer has elapsed, without providing any explanation;
- requiring the employee to undergo counseling at his/her own expense before they will be allowed to participate in mediation with the employer concerning the disciplinary issues;
- the working conditions in the temporary role being poor such as being a considerably longer commute, the role being considerably less senior and no support provided to the employee in the temporary role;
- threatening to withdraw benefits such as a hire car.
Implications for employers
As has always been the case, if an employer wishes to dismiss a staff member they should always go through the proper processes not ‘disguise’ it as a redundancy or act in such a way so as to leave the employee little choice but to resign.
With the increased reach of the unfair dismissal laws since 1 July 2009, it is worthwhile remembering this common sense rule but also be aware that with a redundancy you must now first check whether redeployment is possible and with a forced resignation, that you do not act in such a way so as to lead the employee to believe they are being forced out.
- Kerry-Ann Aitken is a principal for Outsourcedlaw (www.outsourcedlaw.com.au)
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