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Employment Law – Background

Workplace relations between a surgeon and his practice manager had eroded to the extent that her subsequent resignation was held to be a constructive dismissal (meaning it was, in effect, a dismissal by the employer).

Employment Law – Facts

In essence:

• the practice manager was employed by an orthopaedic surgeon and developed a close friendship with the surgeon’s wife over several years
• the surgeon’s marriage ended in 2012 and the practice manager found out in 2013 from other employees about his new relationship with a nurse and she became upset because she was not informed about the marriage breakdown
• the surgeon employed the nurse to assist with patient care in 2014 and the practice manager’s workplace conduct changed including taking a Friday afternoon off without informing the surgeon, causing difficulties with the surgical list for the following week, writing terse emails, and refusing to teach the nurse office practices
• the surgeon requested her to remain professional and courteous in all her dealings

• in August 2016, the practice manager emailed the surgeon alleging verbal harassment and bullying from the surgeon and the nurse over the last three years was causing her stress
• after several attempted consultations the practice manager volunteered to resign, citing lack of loyalty and said to the surgeon “our relationship has ended”
• she sought an unfair dismissal remedy under the Fair Work Act 2009 because her termination was a constructive dismissal and had been harsh, unjust and/or unreasonable
Employment Law – Fair Work Commission Decision

The Fair Work Commission found:

• that a constructive dismissal had occurred based on the final conversations between the surgeon and the practice manager and, as a result, she felt forced to resign
• her dismissal was valid based on her conduct
• her conduct had caused the surgeon to lose trust and confidence in her
• the employment relationship would not have lasted much longer
• in consideration of relevant factors, she was awarded three weeks pay as compensation

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

• inquire with resigning employees about what the cause of their resignation is
• be careful when accepting resignations that purport to blame the employer or which otherwise indicate the resignation has been caused by the conduct or behaviour of others
• be careful not to accept any resignations that are given ‘in the heat of the moment’
• promptly and fairly address any poor workplace conduct or behaviour
• ensure compliance with employment law policies, employment laws and employment contracts when addressing poor workplace conduct or behaviour
• seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision and any other employment related matters

More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.