In an attempt to clarify laws surrounding ‘constructive’ dismissal, the Fair Work Commission (FWC), earlier this month, sought on appeal to determine whether:
- an employee of Bupa (the Respondent);
- a 55-year-old Assistant in Nursing (the Applicant);
was unfairly dismissed from her employment, despite providing a written resignation to her employer in 2016.
With s 386(1) of the Fair Work Act (FWA) being at the core of this interrogation, Commissioner Cambridge examined whether the Applicant was dismissed on the employer’s initiative in accordance with ambiguous ‘constructive’ dismissal laws.
Commissioner Cambridge identified the decades of legal debate and controversy relating to the meaning of ‘constructive’ dismissal. The Commissioner found that there has been no delineation at common law or under statute, giving rise to uncertainty as to the situations in which relevant legislative provisions may apply to constructive dismissal.
Commissioner Cambridge was tasked with evaluating two fundamental considerations –
- firstly, whether the resignation validly operated to terminate the employment of the respondent; or
- secondly, whether special circumstances existed which rendered it unreasonable for the respondent to accept the resignation
Commissioner Cambridge could not deny the overwhelming evidence in favour of the Applicant. As such, the resignation was held to be legally ineffective, and as a result of the employer’s initiative within the realm of s 386(1)(a) of the Act.
A key consideration in this appeal, the Applicant was held to have acted irrationally during the resignation process as a result of her disturbed state of mind.
As such, while the Applicant apparently intended to resign, evident through her submission of the resignation letter, the respondent was held to have gravely misjudged the mental state of the Applicant.
In light of this, Commissioner Cambridge found that the submitted resignation was not given freely, intentionally and as the outcome of any well-reasoned consideration. Flagging the Applicant’s lack of English language skills, as well as ethnic and cultural factors, Commissioner Cambridge criticized the respondent, declaring that the resignation should not have been accepted in the prevailing circumstances.
These factors, when coupled with the respondent’s failure to recognise the Applicant extreme state of emotional distress throughout the disciplinary meeting, ultimately led Commissioner Cambridge to find that special circumstances did, in fact, exist which rendered the resignation of the Applicant legally ineffective.
Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (C2017/4000)