Resignation not constructive dismissal 11/2/98

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Resignation not constructive dismissal 11/2/98

When resignation is an act of informed choice it is not a constructive dismissal.

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When resignation is an act of informed choice it is not a constructive dismissal.

In an application before the New South Wales Industrial Relations Commission, the employee alleged that he had been constructively dismissed from his employment for his supposed involvement in a theft of company property.

Whilst the employee was aware of the theft and the circumstances surrounding it, he did not participate in the extensive investigation that ensued for fear of peer pressure and the repercussions of ‘dobbing’ on his workmates.

One of the employees who was actually involved in the incident claimed that all the employees who were working on that shift were also involved in the theft.

A deal was struck between the employer and the union so that the relevant employees could "resign with payment of one month’s wages from the [employer] in settlement of the matter." At the time, the employee felt obliged to accept the union negotiated arrangement rather than spoil the deal for everyone else.

The employee "subsequently reconsidered his position on the basis that he had done nothing wrong, that he had not been part of the venture to steal the scrap brass, and that he should not have agreed to resign in the circumstances." He argued that the dismissal was constructive however the employer claimed that the employee "resigned his employment as an act of informed choice."

Deputy President Harrison of the New South Wales Industrial Relations Commission concluded that the employee:

...offered his resignation as an act of informed choice, weighing at the time those matters that were important to him and, at the time, was satisfied with the outcome, placing the resignation in that category described by the Full Commission in Allison v Bega Valley [63 IR 68] to be given freely and without undue influence of the employer...

The application for relief from unfair dismissal accordingly fails on the grounds of jurisdiction and would, in the alternative, fail on merit.

 
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