Worker not dismissed, nor was she forced to resign

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Worker not dismissed, nor was she forced to resign

A worker has lost her unfair dismissal case after the Fair Work Commission ruled she had not been dismissed within the meaning of the Fair Work Act.

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A worker has lost her unfair dismissal case after the Fair Work Commission ruled she had not been dismissed within the meaning of the Fair Work Act.  

Background


Reema Sharma worked for Public Transport Victoria (PTV). She initially worked as a project officer (substantive position) and was later seconded to a temporary position as project manager (the secondment). 

In August 2017, she was told that the substantive position would be made redundant. She followed this up with an email to one of the partners, Amanda Robertson, in September.  

She was told in an email that she would start a three-month redeployment period at the end of her secondment, which was in just under three months’ time, where she would be able to search for another position at PTV. If she hadn’t managed to find another position by the end of this period, then her employment would be terminated on the basis of genuine redundancy and she would be entitled to a Targeted Separation Package (TSP). 

A meeting was held where Ms Robertson confirmed that Ms Sharma could elect to start her redeployment from the date her substantive position was made redundant (18 September 2017) but that if she resigned prior to the end of this period, she would not be entitled to a TSP. 

Ms Sharma denies this and says she was told she would still be entitled to a TSP if she resigned. 

The next day, Ms Sharma emailed her employers stating that she was resigning from her secondment and that her last day would be in two weeks. 

However, Ms Sharma submits that she only intended to terminate her secondment and not her substantive position. 

The law


Before the commission can determine whether a dismissal was unfair, the dismissal has to satisfy the test under s386(1) of the Fair Work Act. This states that a person is dismissed if his/her employment was terminated on the employer’s initiative or the person was forced to resign due to the conduct of the employer. 

Decision


The Fair Work Commission was not persuaded that Ms Sharma’s employment was terminated on the initiative of PTV nor was Ms Sharma forced to resign due to its conduct.

The commission held that her employers provided information to her in relation to her options and that she could continue working in her secondment during the redeployment period.

The commission did not accept Ms Sharma’s argument that she had intended to resign from her secondment only, as the substantive role was redundant, and she had already accepted a new role with another company to start the day after her termination. 

Since Ms Sharma was not dismissed from her employment within the meaning of s386, there was no jurisdictional basis for her to pursue her unfair dismissal application. Her application was dismissed. 

Read the judgment


Reema Sharma v Public Transport Development Authority T/A Public Transport Victoria (PTV) (U2018/137)
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