I’ll go first: Employer’s disciplinary process didn’t force resignation

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour. Importantly, it notifies an employee that they are at risk of being dismissed.

Obviously, the final decision as to whether or not an employee is dismissed should not be made or communicated to the employee until the conclusion of the disciplinary process. However, given the seriousness of these matters, it is not uncommon for employees to assume that they are being dismissed before the disciplinary process is at an end.

In a recent unfair dismissal decision of the Fair Work Commission (FWC), a large discount department store in Queensland has successfully shown the importance of going through an appropriate disciplinary process even if the employee thinks the outcome is pre-determined.

In Moore v Woolworths Group Limited t/as Big W [2020] FWC 963, an employee claimed that she had no choice but to resign from her employment during a disciplinary process after she saw a draft letter stating that her employment was being terminated.

The employer had commenced the disciplinary process against the employee following an investigation into alleged safety breaches by a number of employees. The employee was interviewed as part of the investigation, and she was notified of the findings shortly after its conclusion.

The employer then provided the employee with an opportunity to show cause as to why her employment should not be terminated. Once in receipt of her response, the employer requested a meeting to discuss the outcome of the investigation and the disciplinary process.

On the morning of the meeting, the employee was advised by a Second in Charge that she was going to be dismissed. The Second in Charge had obtained unauthorised access to the employee’s Manager’s email account and located a draft termination letter, which he then provided to the employee. Having seen the draft letter, the employee tendered her resignation before the meeting could take place.

The FWC was not satisfied that the employer had done anything to force the employee to resign. It had commenced a disciplinary process, which it was entitled to do, particularly in the face of potential work health and safety breaches.

The FWC accepted that the actions of the Second in Charge were unauthorised and could not reasonably be seen as a formal decision made by the employer, and so the disciplinary process had not yet concluded. The employee could have waited until the process concluded but she elected to resign instead, and in doing so, she gave up the right to pursue a claim for unfair dismissal because she was not dismissed.

The application was therefore dismissed.

Lessons for employers

When commencing a disciplinary process, employees should be made aware that their employment is at risk of being terminated at the end of the process. The final decision as to whether or not an employee will actually be dismissed should not be made or communicated to the employee until the process is concluded.

Making this clear at the outset will reduce the risk of an employee misinterpreting the purpose of the disciplinary process and, as this case shows, will provide a legitimate basis to defend any claim that an employee was forced to resign because of the process.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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