Manager struggles to reintegrate back into role, citing harassment, discrimination
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a sales manager who claimed she was unfairly dismissed by her employer after returning from parental leave.
The worker, who had been employed by the company since June 2020, alleged that she was subjected to workplace harassment and discriminatory treatment during her pregnancy and upon her return to work.
The case hinged on whether the worker was terminated at the initiative of the employer or if she had resigned voluntarily. The decision also explored the concept of "forced" resignation and its implications under the Fair Work Act.
Background of the case
The worker started her employment with the company on a full-time basis in June 2020, working under a series of fixed one-year contracts.
In November 2022, she disclosed her pregnancy to her employer and alleged that she subsequently experienced workplace harassment and discriminatory treatment. The worker took parental leave from April 2023 to October 2023.
Upon returning to work on October 30, 2023, the worker was directed to familiarise herself with new products and not to contact existing customers until a specific time.
Disagreements arose between the worker and her employer regarding client allocation and work arrangements.
Return from parental leave
As the worker prepared to return from her nearly seven-month parental leave, she sent an email to her employer on October 26, 2023, informing him that she would be officially back at work the following Monday, October 30. The employer promptly responded, "Received! Please call me on [phone number] any time".
On her first day back, October 30, the employer sent the worker a WeChat message at 8:05am, advising her to prioritize familiarizing herself with the new products and not to rush into dealing with customers. "In the next few days, you should first familiarize yourself with the new products and don't rush to deal with customers," the message read.
However, at 8:34am, the worker discovered that many features on the company's work platform, 'Xero,' had been turned off, and she couldn't access the inventory. She reached out to her employer, asking him to restore her access. The employer assured her that he would "have a look" into the matter.
The dismissal dispute
The issue of the case revolved around the events that transpired on November 6, 2023. The worker claimed that her employment was terminated when her access to work accounts was closed. However, the employer argued that the worker had voluntarily resigned on November 21, 2023.
The FWC examined the email exchanges between the parties and found that the employer had no intention of terminating the worker's employment.
A few of the highlights of the worker’s email and text messages to the employer include the following:
“If the company insists on compelling me to accept its regulations, I cannot comply. All the clients were acquired through my individual efforts. If the company believes I am in the wrong, I request specific examples or reasons to be provided. Alternatively, the company may choose to terminate my employment, as you suggested when you mentioned being in a bad mood and asking me to stop working,” the worker said.
“What's wrong with me coming back to take my client back now? Why is it that after half a year of hard work, pregnant women, and going back and forth to help her choose products, it's not mine anymore when I come back from vacation?” she added.
“You said that I will quit, then you dismiss me or fire me,” the worker said.
Through these series of exchanges, the FWC noted that the worker had repeatedly raised the question of dismissal, but the employer had rebuffed her suggestions.
The FWC’s consideration
In its analysis, the FWC considered whether the worker's resignation was expressed in the "heat of the moment" or under emotional stress, rendering it legally ineffective.
The decision stated, "Emailing the [employer] on 21 November 2023 was not a 'heat of the moment' action by the [worker] – the resignation was tendered following a period of correspondence between the [worker] and [employer]."
Furthermore, the FWC examined whether the employer engaged in conduct intended to bring the employment to an end or if the termination was the probable result of the employer's conduct, leaving the worker with no real choice but to resign.
The decision noted, "While the [worker] was aggrieved by directions she was receiving from [the employer], the [latter] had nonetheless acceded to the [worker’s] demand that she be allocated the customer relationship with [a client] and had been prepared to give her time to settle back into her role."
Is it dismissal or forced resignation?
Ultimately, the FWC concluded that there was no dismissal within the meaning of section 386 of the Fair Work Act in this case.
The decision stated, "I have concluded there was no termination of the [worker’s] employment on the employer's initiative because I am satisfied the [employer] intended to resign her employment on 21 November 2023 and immediately commence new employment."
The FWC further explained, "I have not been persuaded that the [worker’s] resignation was 'forced'. I have not been persuaded that the [employer] engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of the [worker’s] employment was the probable result of the [employer’s] conduct such that she had no effective or real choice but to resign."
Consequently, the worker's unfair dismissal application was dismissed.
