/ News / Over a barrel: when will a resignation be forced?

Over a barrel: when will a resignation be forced?

20 September 2018

The difference between a resignation that is given voluntarily by an employee, and one that is forced, or is given as a result of an employer’s course of conduct, is often separated by a narrow line. However, the recent decision of Robert Tiller v Relationships Australia Western Australia Inc [2018] FWC 5519 serves as a timely reminder for employers about what is relevant to the analysis.

The facts

Mr Robert Tilller was employed by Relationships Australia Western Australia Inc (Relationships Australia WA) as a counselor and relationship educator from 11 August 2010 to 15 March 2018. He worked as a counselor in Relationships Australia WA’s Counseling agency offering therapeutic support to individuals, couples, families and teens struggling with a range of issues, including depression, anxiety, trauma, communication breakdown and family functioning.

Mr Tiller was also a men’s counsellor and program facilitator for MensPlace (a division of Relationships Australia WA’s Community Education department that offers services and programs for men), and a member of a Men’s Focus Group which was not part of Relationships Australia WA. The Men’s Focus Group gave men working in the social services sector an opportunity to meet and discuss the challenges of working in the sector, ways of improving mental health service provision to men, information sharing, and the opportunity to debate new research or articles both face to face (including during meetings conducted at Relationships Australia WA premises), and via email.

In February 2018, one of the participants from the Men’s Focus Group made Relationships Australia WA aware of a number of emails that Mr Tiller had circulated to the group, including ones that were sent from his Relationships Australia WA work email address. One of the emails contained a link to an article written by Ms Bettina Arndt, and which was published in The Australian, regarding her views on domestic violence.

When Ms Visser (Executive Director) and Ms Reilly (CEO) reviewed the emails that had been sent by Mr Tiller, they considered the material expressed a view materially inconsistent with the views held by Relationships Australia WA. They were also concerned that Mr Tiller was using his work email address to circulate material that was inconsistent with Relationships Australia WA’s philosophy and policies, including its domestic violence policy that “violence is gendered”.

Having reviewed the material, Ms Reilly met with members of the Executive. During this meeting, she told them that she was troubled by what Mr Tiller was doing, and viewed his actions as potentially damaging to the organisation’s reputation. The other members of the Executive agreed.

A meeting was subsequently arranged between Mr Tiller, Ms Visser and Ms Reilly. Mr Tiller was given an opportunity to explain why he sent the material using his work email address, but he was not shown a copy of the documents and material that Ms Visser and Ms Reilly had reviewed, and which formed the basis of their concerns. During the meeting, Ms Reilly explained that the sent material was a “problem” and went against the organisation’s policy. Mr Tiller argued among other things, that the sent material was part of the Men’s Focus Group’s “ongoing discussions” and was not intended as a political statement on his part, or to bring Relationships Australia WA into disrepute. Towards the end of the meeting, Mr Tiller started to feel anxious, and he anticipated that the meeting wasn’t going to end well. He tried to defend his professional reputation, but he was reminded that the meeting wasn’t about his clinical work or performance, but was about his values.

By the end of the meeting, Ms Reilly asked Mr Tiller, “Where do we go from here?” Mr Tiller said, “I guess I will resign”. Mr Tiller was asked whether he wanted to resign “now” or whether he wanted to go away and think about it. He chose the latter, but also stated a second time that he thought he would resign. The next day, Mr Tiller met with Mr Larry Chew (Senior Manager – Corporate Services and Human Resources of Relationships Australia WA) to discuss his options. After discussing his options with Mr Chew, Mr Tiller drafted, and emailed, a letter of resignation.

The decision

Although Mr Tiller tendered his resignation, he alleged that it was not given voluntarily and that he had been unfairly dismissed by Relationship Australia WA. Based on the material before it, the Commission found that Mr Tiller had voluntarily resigned and was not dismissed at the initiative of Relationships Australia WA because:

  • there was no evidence that he was given an ultimatum during his meeting with Ms Visser and Ms Reilly that:
    • he would be dismissed if he did not resign; or
    • he should resign in order to preserve his professional reputation; and
  • if Mr Tiller did not resign, it was possible that the organisation might have explored other options available to it in order to deal with the situation (in consultation with Mr Chew); and
  • the meeting between Mr Tiller and Mr Chew was consistent with Mr Tiller considering whether he would resign, and voluntarily choosing to do so.

Lessons for employers

An employee bears the onus of proving that an employer forced their resignation, or engaged in a course of conduct to bring about their resignation. In other words, the employee must show that they had no other option but to resign.

Putting aside the procedural deficiencies that were evident in the approach taken by Relationships Australia WA, the organisation did not ask for Mr Tiller’s resignation, did not give him an ultimatum, nor immediately jump at his attempt to offer a resignation. These are important factors to keep in mind when dealing with a situation where you are concerned about an employee’s conduct or behavior.

Are you about to meet with an employee to discuss their conduct or behaviour and anticipate that they will try and tender their resignation? If so, don’t hesitate to contact Pamela Flynn (Director) on 0420 362 579 or pflynn@hintonflynn.com.au for advice.

The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.

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