On 8 July 2014, after yet another disagreement with his employer, Mr Thomas Concannon walked out of work at Portland District Health (PDH).  He later filed an unfair dismissal claim with the Fair Work Commission (FWC), arguing that he was effectively dismissed as he had no other option than to resign.  However, the FWC disagreed.  It found that Mr Concannon was not forced to resign “because of conduct, or a course of conduct engaged in by his employer”, as is required by the Fair Work Act 2009 (Cth) (FWA).

The Facts

In March 2013, Mr Concannon started work as Human Resources Manager with PDH.  In October that year, the CEO, Ms Christine Giles, changed the reporting structure and required Mr Concannon to report directly to her.  As a result, Mr Concannon believed he was sidelined from HR decisions and had been made the scapegoat for controversial results.  

On 8 July 2014, Mr Concannon left the office upon hearing that Ms Giles had intervened in a proposed redundancy, meeting with the employee without Mr Colcannon and subsequently postponing a meeting between the three of them.  He later wrote to Ms Giles formalising his resignation on the basis that Ms Giles’ interference was a clear frustration of his employment contract.  Amongst other things, he wrote:

To ensure there is some clarification re my recent resignation please allow me to provide the following…

I am well able to accept professional criticism, but when that criticism becomes personal (with the potential for class actions noting the collective cauldron of sh*t stirrers, as listed below) and is primarily sourced from within my workplace I am left little option but to undertake personal actions to cease those criticisms. This personal litigation would, potentially leave PDH vicariously liable for my actions and as PDH was unwilling to cease those activities by continuing to support the key persons in question I had little option but to distance myself from PDH with immediate effect.

I can advise that I will be commencing actions via a number of jurisdictions against the following persons…

·         [Lists names]

·         And our loopy Psychologist (who's name escapes me)…

I am now in a position where I have nothing and as such I have nothing to lose. There comes a time when enough is enough and personally, I have had a gut full of these individuals and their white anting and as such I will be unleashing 10 kinds of hell upon each of them. I can assure you they will not live long enough to regret ever having chosen to pick a fight with me. As I have always said "don't f*ck with a f*ck*r" and I am the nastiest f*ck*r I know.

The Law

Under the Fair Work Act 2009 (Cth), it is necessary to prove a person has been dismissed before you can argue a claim for unfair dismissal.  This is easy to establish if the employer terminated the employment, however the law also accepts that sometimes an employee is forced to resign because of their employer’s conduct.   This is known as constructive dismissal. 

In order to establish that he was constructively dismissed, Mr Concannon had to show:

• Ms Giles’ interference with his role as HR Manager was intended to drive him to resign; and
• On any reasonable view, her behaviour would have that effect.

The Commission

Considering the examples before it, the FWC found that the key area in dispute was Ms Giles’ management style.  Where Mr Concannon was used to high levels of autonomy in previous roles, Ms Giles took a “hands on” approach.  As a result, she interfered in HR processes and decisions, often at Mr Concannon’s expense.  Although the FWC accepted this would be frustrating for Mr Concannon, it did not agree that the only option available to him was to resign.  Importantly, the FWC stated that Mr Concannon “had no right to require it [Ms Giles’ management style] to be any different” and that he had a variety of options available to him to mediate its impact on his role.  Thus, his choice to resign was his alone, and was not one that he was forced to make.

Note for employers

An essential part of team dynamics is to understand how individuals relate and respond to each other.  If you have knowledge that an employee is not responding well to a specific management style, intervene early and discuss how all parties involved can accommodate each other.  This can avoid common disputes escalating to epic – and expensive – proportions.

To read Concannon v Portland District Health [2015] FWC 513 click here:  https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC513.htm.

Contact Peter McNamara for more information on managing workplace disputes.