By Alexander Millman and Lindsay Carroll, NRA Legal

Following a protracted legal battle that involved an initial hearing, an appeal and a re-hearing, the Fair Work Commission has held that an employer had no right to accept the repeated resignations of a distressed employee undergoing internal investigation.

Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli [2018] FWC 1074

The original hearing

On 1 December 2016, Ms Tavassoli lodged an unfair dismissal application disputing her alleged dismissal on 16 November 2016 from her employment with Bupa Aged Care Mosman (Bupa).

Ms Tavassoli had been subject to an investigation for alleged misconduct. Rather than face investigation, Ms Tavassoli tendered her resignation with four weeks’ notice. When her employer told her that the investigation would continue during that notice period, she tendered her resignation with immediate effect.

Commissioner Riordan determined that Ms Tavassoli’s resignation was not a true resignation, but a ‘constructive dismissal’ or ‘forced resignation’ brought about by conduct of the employer.

Commissioner Riordan upheld Ms Tavassoli’s application in a decision on 18 July 2017, and ordered that she be reinstated with compensation for loss of income.

The appeal

Bupa appealed the decision, arguing that Commissioner Riordan had made an error in finding that Ms Tavassoli had been ‘forced’ to resign.

The Full Bench of the Fair Work Commission agreed with Bupa’s arguments, finding that Commissioner Riordan had decided that Ms Tavassoli had been ‘forced’ to resign due to a course of conduct by the employer without stopping to determine what that course of conduct actually was.

Moreover, the Full Bench held that Commissioner Riordan was in error when deciding the case on this basis, as Ms Tavassoli’s legal representatives had not run this argument.

The Full Bench upheld the appeal and ordered that the question of whether Ms Tavassoli was dismissed be re-heard by Commissioner Cambridge.

The re-hearing

At the re-hearing, the question for Commissioner Cambridge to answer was whether Ms Tavassoli’s resignation was legally effective and therefore not a ‘dismissal’.

Commissioner Cambridge concluded that, on the evidence provided, Bupa’s HR Manager had “significantly misjudged the mental state of (Ms Tavassoli)”.

The Commissioner had regard for various factors which indicated Ms Tavassoli’s irrational state of mind when she tendered her resignation, including:

  • multiple spelling errors in the letter of resignation;
  • addressing a letter which she knew was to be addressed to the HR Manager, with whom she had spoken one hour earlier, as “To whom it may cocern” [sic];
  • dating her letter of resignation with the wrong day of the week;
  • impulsively and without any prior consideration, deciding to amend her resignation from four weeks’ notice to immediate effect;
  • Ms Tavassoli was, on the balance of evidence, visibly very emotionally distressed at the time of tendering her resignation; and
  • Ms Tavassoli tendered her resignation to avoid an investigation into an unmade allegation.

Commissioner Cambridge remarked that it was:

“… difficult to comprehend how (the HR Manager) could have failed to notice (Ms Tavassoli) was crying during the meeting. (The HR Manager) clearly failed to appreciate the level of emotional distress that (Ms Tavassoli) was experiencing …

With all of this in mind, the Commissioner held that Ms Tavassoli’s resignation was not legally effective, and should not have been accepted by the HR Manager.

As such, Ms Tavassoli’s employment ended because of the actions of Bupa in accepting her ineffective resignation, not because she legally resigned.

The case will now be returned to the Full Bench for further case management.

What are the lessons?

As managers, sometimes it can be very difficult to tell if you can rely on an employee’s resignation.

The retail, fast food, and hair and beauty industries are perhaps the most common areas where ‘walk-out’ resignations occur, and these can present their own unique difficulties.

Each such resignation needs to be considered in light of its own circumstances, but key things to consider are:

  • Was the employee angry/upset/distressed when they ‘resigned’?
  • Did the employee resign in writing or verbally?
  • If the resignation was in writing, is there anything in the document that indicates that the employee was not in the right frame of mind? (e.g. spelling mistakes, incorrect date, addressed to the wrong person)

In circumstances such as this, especially when a resignation is verbally communicated, a good rule of thumb is to wait until the next day to ask the employee, in writing, if they still wish to resign or if they have reconsidered their position.

This gives the employee the opportunity to ‘cool down’ so that you may more safely rely upon any confirmation of resignation you receive (unless it is rife with other indicators of emotional distress).

Moreover, this decision shows quite clearly that if you get it wrong, the Commission is not afraid to ‘name and shame’.

It is also a reminder that winning an appeal is not always a good thing – in this case, Commissioner Cambridge just confirmed Commissioner Riordan’s decision that the employer had dismissed the employee.

The Full Bench decision may not be applicable to all circumstances.

For advice tailored to your particular circumstances, call NRA Legal on 1800 RETAIL (738 945).