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Excerpt from this article first published in Human Resources Magazine, Issue 114, 3 October 2006
Employees who claim constructive dismissal under Work Choices bear the onus of establishing that their employer forced them to resign from their employment.
In Annette Megna v No 1 Riverside Quay Pty Ltd, Riverside operated food outlets at various BP Connect Service Stations. The employee was employed as Café Captain at the BP Connect at Palms Corner Service station. She informed her manager that her motor vehicle had broken down and that she was unable to make her way to work, and no other avenues of travel were practicable. The employee inquired about positions available at BP Connect at other sites closer to her place of residence, in particular Caboolture North. She alleged that her manager had indicated that she could be transferred to Caboolture North if she resigned her employment from Palms Corner. Based on her mistaken belief she wrote to her manager stating that “at present I am unable to get to work…knowing this I feel that I cannot fulfil my obligations to Palms Corner” and further that “due to circumstances beyond my control I have to resign from my position at Palms Corner…Can you please notify me ASAP regarding any chance of other positions at Caboolture North”.
When no further work was offered to her at Caboolture North the employee claimed that she had been constructively dismissed. The employee alleged that Riverside by its conduct, intended to induce the employee to resign her employment at Palms Corner.
WorkChoices expressly requires an employee to demonstrate, on the balance of probabilities, that they did not resign their employment voluntarily, but was forced to do so because of the employer’s conduct, such that there was an element of compulsion in the termination.
In this case, the Federal Commission found that Riverside had not used its position to mislead the employee with the intention of her bringing her employment to an end. As such, the employee’s resignation was voluntary.
HR tip: While an employee bears the onus of proving a constructive dismissal occurred, employers must be careful not to choose a course of conduct which compels or forces an employee to resign their employment.
Kelly Godfrey, Senior Associate
