Login
Lawyers warn employees from resigning before termination
An employee given the choice to resign rather than be terminated should think clearly about this decision as it may prevent any claim bought against the employer in future, according to Townsends Business and Corporate Lawyers.
Naomi Neilson
The recent decision of the Fair Work Commission in the Hudson v Transport for NSW case saw the commission side in favour of the employer, despite the employee having grounds to argue unfair dismissal had she not chosen to resign.
To continue reading the rest of this article, please log in.
Create free account to get unlimited news articles and more!
In a statement, Townsends Law said: “The employer’s case relied primarily on matter of jurisdiction. Unlawful termination laws do not cover employees who resign and were not forced to do so as a result of their employer’s conduct.”
Samantha Hudson was director of service design with Transport for NSW and in April 2018, Transport NSW commenced alleged unsatisfactory performance processes.
In July, Transport NSW raised concerns about Ms Hudson’s conduct for the first time, following allegations of harassment and bullying by two other employees. They were subsequently informed by Transport NSW that the allegations were groundless.
In October, Ms Hudson was informed of the allegations made against her and was told to respond in writing. At the end of the month, she was informed the decision had been made to “proceed with termination on the grounds of unsatisfactory performance” due to “not adequately addressing those concerns [about her performance]”.
Ms Hudson was given the choice of either a termination or resign prior to termination, an offer required by legislation under the Government Sector Employment Act 2013.
She did so to improve her chances of re-employment in public service. In November, Ms Hudson filed an application with the commission for unlawful dismissal, alleging that she was “systematically discriminated against on the grounds of her gender”. She sought reinstatement and “protection from ongoing discrimination”.
The commission found in favour of Transport NSW, arguing that Ms Hudson resigned voluntarily before termination and she had not successfully demonstrated that she was forced to resign, despite being informed that termination would “certainly follow”.
Townsends Law added the commission’s decision made no mention of Ms Hudson’s case for gender discrimination, because she was held to have voluntarily resigned.
“An employer considering dismissing an employee, should consider offering them the chance to resign first,” Townsends Law said. “It’s not bulletproof, but the commission might see their resignation as an impediment to any claim against the employer.
“If you’re ‘given the elbow’ at work, call the FWC and your solicitor before accepting the employer’s terms, particularly if they offer you an ‘honourable’ opportunity to resign as opposed to being dismissed.”
