Resignation by agreement not ‘forced’

Cases

Resignation by agreement not ‘forced’

A worker who was negotiating a stress claim was not forced into resigning, the AIRC has ruled - finding it was part of the workers compensation agreement that he willingly agreed to.

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A worker who was negotiating a stress claim was not forced into resigning, the AIRC has ruled - finding it was part of the workers compensation agreement that he willingly agreed to. 

Employed by Lombardi Nominees Pty Ltd as a purchasing officer, the worker made a compensation claim for stress, stating he was incapacitated for work. 

He claimed the stress arose through his demotion and the surrounding circumstances at work. 

The claim was rejected, however, through a conciliation conference in August 2005 with WorkCover and the insurer, and a $17,500 settlement was reached, which also included the worker resigning from his employment. 

The worker did so but, later, claimed unfair dismissal, arguing the resignation was at the initiative of his employer and that he was forced to agree to the terms. 

Employer unaware 

In the AIRC, Lomdardi Nominees stated he had accepted the workers letter of resignation. 

He says he only became aware of the resignation element of the settlement through the workers compensation insurer when they attached a copy of the first resignation to the deed of settlement sent to him. 

Further, he gave evidence that the proposal relating to the worker resigning was one that was raised by the worker and that he had accepted that. He also stated that there was no requirement that the worker resign. 

Freely entered into agreement 

Deputy president Brendan McCarthy noted that it was ‘clear’ that the compensation agreement canvassed the resignation of the worker, although it did not form part of the deed of settlement. 

The DP rejected the worker’s portrayal that he had ‘no alternative’ but to agree to resign. 

‘I do not accept that the respondent (employer) required, demanded or in any other way made the agreement at WorkCover conditional on a termination of employment,’ McCarthy said in finding the worker’s evidence ‘unreliable’ and ‘evasive’. 

‘The agreement that the applicant (worker) resign, I consider, was initiated by or for the applicant in the context of the applicant’s endeavours to bring about a settlement for his workers’ compensation claim.' 

‘Regardless of who initiated the prospect of a resignation I find that the applicant freely entered into an agreement settlement that he [the applicant] would initiate the termination of his employment. He decided to do that by way of a letter of resignation.’ 

Worker had choices 

McCarthy also noted the worker ‘had choices’ following the discussion and agreement.

‘He had the choice to not agree to resign whether part of a settlement or not. He had the choice following the reaching of an agreement that he resign, of seeking a retraction of that part of the agreement, especially as it did not form part of the deed of settlement,’ the DP said. 

‘He had the choice of advising the respondent that he considered the agreement to resign as a termination of employment at the initiative of the employer and therefore would not be resigning.' 

‘I determine that the employment of the applicant was terminated at his initiative and not at the initiative of the employer.’ 

The worker’s claim was dismissed. 

Shortland v Lombardi Nominees Pty Ltd [2008] AIRC 274 (3 April 2008) 


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