Big compensation for “inevitable” forced resignation of long-serving DSW

A Disability Support Worker (DSW) has been awarded nearly $30,000 compensation by the Fair Work Commission after it found the actions of her Western Australian employer triggered her resignation, tendered when the employment relationship broke-down as she sought to resume duty after suffering a heart attack, which was the second she had experienced during her eight years of employment.

The DSW suffered her second heart attack in December 2022 and was invited to a meeting on 12 January 2023, “to discuss her employment”, which, despite conjecture as to what transpired during its course, “appears to have been the catalyst for some changes in the [DSW’s] working arrangements”. Deputy President O’Keefe assessed there was “little common ground” between the parties on the issue of the DSW’s working arrangements beyond this point, with the DSW maintaining her employer was seeking to unilaterally reduce her full-time employment to 60 hours per fortnight, while the employer insisted the DSW had limited her availability and that the reduced hours were optional and part of a consultation process. Having never accepted or agreed to the reduced hours, the DSW sent an email on 7 March 2023 notifying of a grievance regarding the way she had been treated over the issue of her working hours. Days later, the DSW, by way of her doctor, lodged a claim for workers’ compensation citing stress and was thereafter absent from work having been certified as unfit. The DSW resigned on 1 May 2023 with immediate effect.

Deputy President O’Keefe was unable to find the DSW ever restricted her availability below her full-time hours, instead concluding the 60-hour fortnight proposal was initiated by the employer. Despite never having been “malicious or intended to provoke a negative reaction”, the Deputy President observed it was “reasonable” for the DSW to regard the employer’s “continual canvassing of the 60 hours / part time roster” constituted the employer seeking to “unilaterally reduce her contractual hours” which amounted to repudiation of her full-time employment contract. Deputy President O’Keefe confirmed the “actions of the [employer] were such that they forced the resignation of the [DSW] and the termination was at the initiative of the [employer]”. The Deputy President accepted this had never been the employer’s intent, instead it was “the inevitable result of a combination of factors and issues that caused great distress to the [DSW]”.

In considering whether the DSW had been constructively dismissed, Deputy President O’Keefe noted two factors contributed to his assessment the resignation had been “forced”. The first element being the reduction of hours from 76 to 60 per fortnight, which the Deputy President described as “so significant that in all likelihood it would sustain a claim of forced resignation on its own”, and the second being the treatment of the DSW during discussions about the proposed changes to her working arrangements.

Although Deputy President O’Keefe repeatedly acknowledged some of the employer’s actions resulted from “an unintentional error” and bore “no malicious intent”, he concluded various issues, when considered “collectively”, provided “a compelling argument that the resignation was forced by the actions of the [employer]”. Factors highlighted as causing a “snowballing effect” leading to the DSW’s “upset” and her ultimate resignation included:

• failing to offer the DSW a support person for the 12 January meeting and allowing the discussion to appear more “formal” than she had been told to expect;

• the DSW perceiving that she was being removed from her “preferred shift” of night shift, despite being cleared to resume working that shift;

• rostering the DSW on at a facility she had previously advised she did not wish to work at due to her “having a previous conflict with the manager of that facility”;

• the “non-committal response” to the DSW’s grievance of 7 March, “the subsequent lack of attention paid to it by the [employer] and the fact that the response, such as it was, came from someone contained in the grievance”; and

• the “unwise” decision of the employer to seek to have the DSW assessed for work capacity during a period where she was off work, certified as unfit due to stress, and in the middle of a workers’ compensation claim.

Whilst individually these factors “would not be likely to support a finding that the [DSW] was forced to resign”, Deputy President O’Keefe clarified that, viewed collectively and added to the “significant” reduction in hours, the resulting resignation was indeed forced by the actions of the employer. The Deputy President found the DSW’s termination to be “unjust because through no fault of her own she was placed into a situation where she had no option other than to resign” marking the dismissal as unfair.

In considering remedy, the Deputy President determined reinstatement was inappropriate because the DSW “was required to take a not insignificant period of time off work certified by a medical practitioner as unfit due to stress arising from the actions of the [employer] as she quite justifiably perceived them”, even though the employer had not acted with malice. In the alternative, Deputy President O’Keefe opted to award the DSW $29,068.24 (gross) in compensation.

Conrad v Rocky Bay Limited [2023] FWC 2727 (18 October 2023)

The employer immediately sought leave to appeal the decision citing ten appeal grounds the Full Bench labelled “discursive and repetitive”. Having determined there was no arguable case of appealable error, permission to appeal was refused in May 2024.

Appeal by Rocky Bay Limited v Conrad [2024] FWCFB 256 (7 May 2024)