Forced to Resign?

By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).

Resolving workplace conflict in small business environments where staff work side by side demands management skill and quick responses. The longer you leave it, the bigger it gets. The team is destabilised and time, good will and profits are lost in the process. The Fair Work claim of Challancin v Smile Dental Clinic Pty Ltd is a case on point. Ms Challancin, a clinical bench assistant with Smile Dental, was in conflict with several employees and was involved in an accident with the principal Dentist. Uncertain about the security of her employment, she approached the Practice Manager to ask whether she would be fired.

The critical meeting

The Practice Manager met with Ms Challancin to discuss the incident between her and the Dentist, Dr Davidson, who no longer wanted her to work as a bench side assistant, repositioning her to a role in the sterilizing department. This meant working five days a week instead of her usual four days on, four days off. The Practice Manager emphasised that she was still employed, but due to the conflict may wish to seek employment elsewhere. It was only after Ms Challancin had been informed of her changed role that the Practice Manger asked her to submit her own version of events.

After the meeting

The Practice Manager gave Ms Challancin a letter outlining the changes to her employment, stating that this was necessary to minimize further conflict within the Practice. Ms Challancin responded by giving her Manager a medical certificate and notification that she was taking two weeks sick leave for stress. At the end of the sick leave Ms Challancin phoned to advise that she would not be returning to work. She later filed a claim of constructive dismissal, that her employer had forced her to resign.

Considerations for Fair Work

Ms Challancin claimed that the repositioning within the Practice, the change of hours and the suggestion that she look for other work had forced her to resign. The Commissioner did not agree. Ms Challancin had not resigned immediately following the management meeting, and had taken two weeks sick leave. Accessing entitled sick leave indicated that she wished to remain an employee of the Practice, but resigning immediately following the leave prevented further discussions with the Practice about any alternative arrangements. She had therefore forfeited her right to claim that she was forced to resign.

The Commissioner stated that the actions of the employer were fair; there had been an attempt to mitigate a difficult workplace conflict by offering an alternative position and, whilst it was mentioned that Ms Challancin might wish to seek another job, it was emphasised that she was still employed.

Considerations for employers:

  • The Practice failed to ask for Ms Challancin’s version of events before making the decision to change her position, and no mediation or open discussions were attempted between her and Dr Davidson. This makes an employee feel his/her opinion is less respected than other employees and can be avoided by giving all staff members involved in a conflict an equal opportunity to speak.
  • If the early warnings of conflict between Ms Challancin and other employees had been addressed immediately, the escalation and subsequent fall out could have been avoided.
  • Employers must consult their employees when they have decided to alter or change workplace roles and hours of work. This consultation should include consideration of the employee’s opinion, and discussion about ways to limit adverse effect that change may have on the employee.

For further information or advice, contact us at info@clinlegal.com.au or visit www.clinlegal.com.au and access our Guides: How to Manage Workplace Conflict and How to Comply with Employee Consultation Requirements.

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