Changing resignation terms amounted to dismissal

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Changing resignation terms amounted to dismissal

The Fair Work Commission has ruled that shortening a resignation notice period amounted to a dismissal at the employer's initiative.

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The Fair Work Commission has ruled that changing the terms of a resignation can amount to a dismissal at the initiative of the employer. 

Christopher Patterson resigned after his request for personal leave was refused. After receiving his resignation, his employer, Re-Engage Youth Services, erroneously shortened the notice period and immediately ended his employment. 

Background


Mr Patterson, a 70-year-old former solicitor, was working for the not-for-profit association for four years before his termination in July 2017.  

His work involved assisting young people from disadvantaged backgrounds through case management and educational services.  

In January, due to untoward family events, Mr Patterson’s wife booked a family holiday to Thailand for August that year. He was aware that he required two weeks leave from Re-Engage and that the timing of the trip was ‘not ideal’ as it would be during the school term. 

Mr Patterson informed  his supervisor of this trip on 31 May 2017 but failed to submit a formal request on the assumption that it was not required.  

His request for leave was refused on 5 June 2017 and it was advised that it was his own responsibility to ensure leave was granted before he made any commitments. 

Mr Patterson was responded with an email outlining the financial repercussions of cancelling a $3000 airfare , and pointing out that the trip was booked when a more ‘employee friendly’ administration was in charge. 

The stress of this refusal meant Mr Patterson was absent from work for a few weeks. The Commission accepted the reasons for his absence being stress related. 

When he did return to work, however, he left during lunch without permission which was in breach of the company’s policy and procedures. 

During the time he was absent, the CEO of Re-Engage sent him an email requiring him to attend a meeting on Monday 10 July to discuss his work performance. This was in relation to his absences and breaches of procedure and policy. 

Mr Patterson submits that he believed this email was a form of performance management and that it only added to his stress which he says was getting ‘completely out of hand’. 

On the day of the meeting, Mr Patterson came to work and sent an email providing three weeks’ notice of his resignation. 

The resignation was accepted at first but, in a later email, he was advised he would not be fit to continue to work for the next three weeks and he would instead be paid two weeks in lieu of notice. 

The commission raised three core issues that needed to be addressed: Was he dismissed within the meaning of the FW Act? Was the dismissal unfair? And what was the appropriate remedy? 

Judgment


The Fair Work Commission did not find it was a forced resignation under s386(1)(b).

Deputy president Anderson accepted that he resigned under the ‘burden of immense pressure’ in choosing between his job and family holiday after his leave was refused. He concluded that although his resignation was a result of the employer’s conduct, he was never forced to do so. 

However, it was held that by shortening the notice period to two weeks the employer terminated the employment at its initiative under s386 (1)(a), which satisfies the Fair Work Act’s definition of dismissal. 

The deputy president was satisfied the employer brought Mr Patterson’s employment to an end in a manner that was ‘materially different’ to the resignation terms. This was for the following reasons: breaching the contract by unilaterally shortening the notice period and bringing the employment to an end from the 10th July. 

The commission found there was no valid reason for the dismissal. Re-engage argued that it was valid on the grounds Mr Patterson made multiple breaches of policy including his unauthorised absences, decision to send notice of personal leave by SMS text and the lack of personal leave form. 

The commission overruled this argument and denied these were breaches. Mr Patterson was said to have sent the request for leave within a reasonable timeframe of three weeks and that it was normal practice among employees to, at first, only informally advise managers of this request.

However, the commission concluded that his unauthorised absence from the centre after lunch was a serious failure that warranted a sanction. On the other hand, it was not a valid reason for dismissal given that Mr Patterson had an otherwise exemplary record.  

 The commission concluded there was no reasonable basis Mr Patterson could not reliably remain an employee.

It ruled the dismissal unreasonable and harsh and ordered compensation of $1324.15 in lieu of reinstatement. 

Mr Christopher Patterson v Re-Engage Youth Services Incorporated T/A Re-Engage Youth Services
(U2017/8214) [2018] FWC 20
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