Employee felt forced to resign when mutual trust was lost


Employee felt forced to resign when mutual trust was lost

An employee was constructively dismissed after she felt forced to resign after deteriorating workplace relationships had eroded the trust between employer and the employee.


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An employee was constructively dismissed after she felt forced to resign because deteriorating workplace relationships had eroded the trust between employer and the employee.

Medical practice manager upset by employer’s relationships

A woman employed as a medical practice manager for an orthopaedic surgeon had over several years become friendly with the surgeon’s wife. She was upset by not being told about the breakup of their marriage in 2012 and hearing from other employees in 2013 that the surgeon had entered into a new relationship with a nurse. When the surgeon integrated the nurse into the business to assist with patient care in 2014, the practice manager was unhelpful and told a team leader she did not want to have any contact with “that woman”.

The changes in the practice manager’s conduct to the surgeon included taking a Friday afternoon off without telling him, thereby causing difficulties with the surgical list for the following Monday.

She had asked for a pay rise in December 2014 and been affronted because for the first time during her employment she had not been granted a rise. She wrote terse emails, and refused to teach the nurse the basics of how the office worked. The surgeon told her the tone of some of her emails had been inappropriate and asked her to be professional and courteous in all her dealings.

In August 2016, the practice manager emailed the surgeon saying she was stressed by the verbal harassment from him and the nurse over the past three years. The surgeon was perplexed about her allegation of verbal harassment and attempted to talk to her. On 20 September 2016, he again tried to talk about her unsatisfactory conduct. This time he taped their discussion. She said there had been complaints from patients but refused to give him any details. She turned on him, questioning his integrity and criticising him for not telling her about his marriage breakdown.

The next day, the surgeon tried to discuss the practice manager’s conduct of the previous day. She responded aggressively and complained that he had not been loyal to her, saying “our relationship has ended” and volunteered to resign. She said she would claim dismissal under duress because of the surgeon’s “persistent and relentless bullying, verbal abuse and harassment since December 2014”. She wrote out her resignation and gave two weeks notice, although the surgeon asked for four. She left and did not return to work, serving the two weeks notice as sick leave.

Was it constructive dismissal?

The practice manager applied to the Fair Work Commission for an unfair dismissal remedy according to s394 of the Fair Work Act 2009, claiming the termination of her employment had been a constructive dismissal, which had been harsh, unjust and unreasonable.

Commissioner Spencer examined in particular the final conversations between the parties and found that a constructive dismissal had in fact occurred. The practice manager had felt forced to resign.

But the surgeon did have a valid reason for dismissal, given that she had rejected his request to integrate the nurse into the business and withheld patient complaint information. She had effectively lost his trust and the confidence he needed to have in her ability to perform her role in the practice.

The practice manager did not seek reinstatement, and with distrust on both sides it would not have been workable anyway. Commissioner Spencer determined that her employment would not have lasted much longer. She was awarded three week pay as compensation.

Ham v Dr Allan Clarke, t/a CJ Orthopaedics Pty Ltd [2017] FWC 1335 (7 March 2017)

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