Unfair Dismissal Finding for Employee Forced to Resign by Employer

The Fair Work Commission (FWC) has found a South Australian-based business unfairly dismissed its sales manager when it forced him to resign over a new employment contract which substantially reduced his commission payments.

The FWC found the respondent, 4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide, had not intended on the employment relationship terminating, but that termination was the probable result of its conduct in making persistent demands of the applicant (Mr Constable) to enter into the new contract.  The FWC held the demands were pursued “relentlessly” by the business owner and an external HR provider.

Deputy President Anderson of the FWC found:

Mr Constable was, in the words of the court in Barclay v City of Glasgow District Councilreferred to in Minato v Palmer Corporation Ltd, “being jostled into a decision” to resign. Or in the words of Olsen J in the Supreme Court of South Australia in Easling v Mahoney Insurance Brokers Pty Ltd, judged reasonably and sensibly, the employer’s conduct was such “that the employee cannot be expected to put up with it”.

The FWC ordered the respondent to pay the applicant $11,535.26 as compensation for the unfair dismissal plus $1,238.92 in superannuation.

Constable v 4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide [2018] FWC 6042

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