In a recent decision the Fair Work Commission dismissed an application for general protections involving dismissal by an employee who resigned after being required to make flexible work requests every 3 months to care for his wife.
The Facts
The employee was a customer care consultant who had been employed for nearly 3 years. He was also a full-time carer for his wife who had an ongoing disability.
He made several requests for flexible working arrangements, which the employer approved for 3-month periods. He was disappointed at having to keep reapplying. He claimed that in a meeting with his Team Leader he was told that further flexible work requests would be denied.
The next day he resigned his employment and subsequently brought an application for adverse action involving dismissal.
Under the Fair Work Act a person is dismissed who has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the employer. This is often called ‘constructive dismissal’.
The employer disputed the application on the grounds that he was not dismissed. The employer also disputed that he was told that further flexible work requests would be denied, and said the further request was likely to have been granted had he not resigned.
The Decision
The Commissioner dismissed the application, observing:
“There is a high bar required to establish forced resignation. The onus is on the Applicant to prove that he had no real choice but to resign. I find that the Applicant’s evidence does not establish that he was forced to resign…
I find that it was open to the Applicant to wait for the request to be formally considered, in accordance with the flexible working arrangements policy, of which he was aware. The policy included that the Respondent may try to find alternative ways to accommodate the employee’s needs, should the request be denied.”
The Commissioner accepted that the employee was in a difficult position and under stress due to having to arrange care for his wife, which was compounded by his need to submit flexible working arrangement requests every three months.
The Commissioner also found that the employer had showed a great level of sympathy for the Applicant and approved numerous requests for flexible working arrangements in the past, and it was probable that the latest request would also have been approved eventually, had the employee not resigned.
Implications
The case is a reminder to employers of the benefits of a suitable work flexibility policy and managing flexibility requests according to the policy.
The case also illustrates the high bar that applies in constructive dismissal cases. Employees need to be aware that, even when under significant personal pressure, a resignation may not always amount to a constructive dismissal.
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