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One of the key elements of a procedurally fair disciplinary process is for the employee in question to be notified of the seriousness of the process (including the potential disciplinary penalties) and to be provided with an opportunity to respond to any allegations before a decision as to disciplinary action has been made.

An employer failing to take these steps can lead to the employee feeling as though the employer has already made its decision, irrespective of what the employee might say. This often leads to situations where an employee resigns because they feel as though they will be dismissed regardless.

In such cases, the resignation might not be a genuine one and could instead amount to a termination at the initiative of the employer (entitling the employee to access the unfair dismissal and general protections jurisdictions of the Fair Work Act 2009 (Cth)).  

The Fair Work Commission (FWC) was recently tasked with considering this scenario in the jurisdictional hearing of Kemmis v The Ethical Ice Cream Co (Cairns) Pty Ltd [2022] FWC 1653.

The employee was employed by The Ethical Ice Cream Co (Cairns) Pty Ltd (the Employer) in the position of Acting Assistant Manager.

In or around January 2020, the Employer became increasingly concerned about the employee’s performance, including instances where the employee had opened the store late, was rude to co-workers and failed to notify the Employer that she had covered and not attended assigned shifts.

In what the employee understood to be a weekly meeting to discuss operational issues, the Employer informed her that her recent performance indicated that the role was not working for her or the business and there was no point remaining in the role if she was unhappy.

In response to the Employer’s concerns, the employee responded by saying “Well, I’ll walk then”. The Employer then concluded the meeting and gave the employee a short period of time to remove personal documents from the work laptop and exit the store. The Employer emailed the employee later that day confirming her resignation.

The employee subsequently lodged an application with the FWC to deal with a general protections dispute involving dismissal, claiming that she was forced to resign by the Employer.

The Employer raised a jurisdictional objection on the grounds that the employee had resigned from her employment and therefore did not have access to the jurisdiction. The Employer submitted that had the employee not resigned from her employment, it was “fully prepared to dismiss her on the spot” due to her performance and conduct issues.

Accepting that the employee had told the Employer that she would “walk”, the FWC was tasked with considering whether this constituted a genuine resignation or whether it was a termination brought about by the Employer’s actions.

The FWC accepted the employee’s evidence that she thought the meeting was to discuss operational issues and not her conduct or performance. The FWC stated that this indicated the employee had not entered the meeting with any intention to resign or for her employment to end following the meeting.

The FWC found this was further supported by the employee having to promptly remove personal documents from the work laptop shortly after the meeting – a task that would have otherwise been completed prior to the meeting had she intended on resigning.  

In having regard to the above, the FWC was satisfied that the employee’s resignation was a “heat of the moment” response that was provoked by the Employer raising a number of concerns which came as a shock to the employee.

The FWC had “no hesitation” in finding that the Employer had engaged in conduct intended to bring the employee’s employment to an end, especially considering that if the employee had not offered to resign, the Employer would have dismissed her on the spot.

The FWC therefore dismissed the jurisdictional objection and allowed the employee’s general protections application to proceed.

Lesson for employers

When commencing disciplinary action against an employee, employers must notify employees of the seriousness of the process (including any potential disciplinary penalties), but they must also provide the employee with a genuine opportunity to respond before a final decision is made.

Where an employer has pre-determined the outcome of the disciplinary process and the employee resigns as a result, the resignation may be found to be a termination at the initiative of the employer.  

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