Long-term notice of resignation cut short was dismissal: FWA


Long-term notice of resignation cut short was dismissal: FWA

Target dismissed a store manager when it made her prospective resignation effective immediately, FWA has found.


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Target dismissed a store manager when it made her prospective resignation effective immediately, FWA has found.
Commissioner Michael Roberts made the finding during the store manager’s hearing for an extension of time on her unfair dismissal claim.
The worker had been employed with the store for 25 years, when she gave her resignation in May.
According to her letter to Target, the worker intended to take the period between May and December in the form of a combination of rostered days off, carer’s leave, recreation leave and long service leave. Her final day of employment with Target would then be 3 December.
The manager detailed personal circumstances that required her to be a full-time carer to her mother-in-law and requested her leave and allowances be processed that way so she would not exceed Health Services thresholds for the 2009–10 financial year.
However, Target, in accepting her resignation, decided it would be from 3 May and paid four weeks salary in lieu of notice.
The worker argued by making the resignation effective immediately, the termination had come at the initiative of the company.
Target ‘pushed’ worker
Commissioner Roberts agreed, finding Target’s action in purporting to accept the resignation but making it immediate, was ‘indisputably’ a termination at the initiative of the employer.
‘Even if Ms Nohra (worker) was voluntarily standing on a metaphorical high ledge announcing that she would jump from employment in about seven months time, it was Target that then pushed her,’ the Commissioner said.
Roberts noted that as a long-serving employee of Target, she ‘deserved more consideration’.
‘Her letter sets out the unfortunate consequences that would flow from her receiving a large payout during the financial year ending 30 June 2010. Target ignored that and terminated the employment relationship,’ he said.
‘More disturbingly, by terminating Ms Nohra’s employment earlier than she intended, the company was saved a considerable sum because it was not obliged to pay out carer’s leave as a lump sum. These factors militate strongly in favour of Ms Nohra.’
Extension granted
Roberts then went on to consider whether the worker’s dismissal claim, filed 15 days late, could be granted an extension of time.
He accepted her evidence that her carer’s obligations and her ‘confusing’ legal research of options open to her (whether it was an unfair dismissal or an constructive dismissal) had caused her late claim.
‘Ms Nohra is a 40 year old woman who spent 25 years working for Target and I can readily believe that the manner of the ending of her employment relationship after such a length of service would cause her a level of psychological distress which would only be compounded by her carer responsibilities,’ Roberts said.
‘I accept that the psychological and practical pressures on Ms Nohra provide a satisfactory explanation for the delay in filing her substantive application for relief.’
The matter will now proceed to arbitration.
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