I FACTS

The applicant, Moana Danger, was employed as a Customer Services Representative by the Commissioner of Police, commencing her employment on 28 August 2018.[1] On 7 September 2021, the Commissioner of Police issued a "COVID-19 Vaccination Mandate Direction," requiring all employees to provide proof of vaccination or a medical exemption.[2] Employees who failed to comply with the mandate were to be stood down without pay.[3]

Ms Danger objected to providing her immunization history and did not apply for an exemption.[4] Consequently, she was stood down without pay on 1 October 2021.[5] On 18 October 2021, she submitted her resignation, citing the COVID-19 mandate and the NSW Police Force's handling of her employment as reasons for her decision.[6] She later filed an application for relief in relation to unfair dismissal, claiming she had been constructively dismissed.[7]

II PROCEDURAL HISTORY

Ms Danger filed her unfair dismissal application under section 84 of the Industrial Relations Act 1996 (NSW) on 8 November 2021,[8] seeking reinstatement and monetary compensation. The Commissioner of Police filed a Notice of Motion on 22 November 2021, seeking to dismiss the application on the grounds that Ms Danger had voluntarily resigned and was not dismissed.[9] The Industrial Relations Commission of New South Wales, presided over by Commissioner Murphy, heard the matter and dismissed the respondent's motion, finding that Ms Danger had been constructively dismissed.[10]

III THE COMMISSION'S FINDINGS:

 The Commission applied the principles of constructive dismissal as outlined in the case of Allison v Bega Valley Council (1995) 63 IR 68.[11] The central test is whether the employer’s conduct was the “real and effective initiator” of the termination, notwithstanding that the employee formally resigned. This test requires an objective assessment of the employer’s conduct and its practical effect on the employee, rather than a subjective inquiry into the employee’s intentions. The focus is on whether the employer’s actions left the employee with no real or reasonable alternative but to resign. Importantly, the doctrine recognises that constructive dismissal may arise even in the absence of an explicit ultimatum (such as “resign or be dismissed”), where the employer’s conduct exerts sufficient pressure to effectively compel resignation.The Commission found that the Commissioner of Police's actions, including issuing contradictory directives regarding the requirement to provide immunisation history and standing down the applicant without pay, left Ms Danger with no reasonable choice but to resign.[12] The commission concluded that her resignation was not voluntary but was compelled by the employer's conduct, which amounted to constructive dismissal.[13]

IV APPLICATION OF CONSTRUCTIVE DISMISSAL:

 Constructive dismissal, also referred to as "forced resignation," occurs when an employee resigns due to the conduct of their employer, which leaves them with no reasonable choice but to terminate their employment.[14] Under section 386(1)(b) of the Fair Work Act 2009 (Cth), a person is considered dismissed if they resign but were forced to do so because of the employer's conduct.[15] This concept is also recognised under the Industrial Relations Act 1996 (NSW) for unfair dismissal claims.[16]

 The key test for constructive dismissal is whether the employer's conduct was the "real and effective initiator" of the termination. This involves an objective analysis of the employer's actions to determine whether they intended or had the probable effect of compelling the employee to resign. Examples of conduct that may lead to constructive dismissal include standing down an employee without pay, issuing contradictory directives, or creating a hostile work environment

V IMPLICATIONS OF THESE FINDINGS:

 The decision in this case underscores the principle that an employer's conduct can lead to a finding of constructive dismissal if it effectively forces an employee to resign. The commission's analysis highlights the importance of employers acting consistently and fairly, particularly when implementing workplace policies that may significantly impact employees' rights and livelihoods. The case also demonstrates that standing down an employee without pay, especially in the absence of clear communication and resolution of grievances, can be deemed a constructive dismissal. Serving as a reminder to employers to carefully consider the implications of their actions and policies on employees, as well as to ensure compliance with procedural fairness and transparency.

VI FOOTNOTES

[1] Danger v Commissioner of Police [2022] NSWIRComm 101, [2]–[3].

[2] Ibid [11].

[3] Ibid [11].

[4] Ibid [15].

[5] Ibid [15].

[6] Ibid [16].

[7] Ibid [19].

[8] Ibid [1].

[9] Ibid [6].

[10] Ibid [22].

[11] Allison v Bega Valley Council (1995) 63 IR 68, 72.

[12] Danger v Commissioner of Police [2022] NSWIRComm 101, [20].

[13] Ibid.

[14] Ibid [21].

[15] Allison v Bega Valley Council (1995) 63 IR 68, 72.

[16] Fair Work Act 2009 (Cth) s 386(1)(b).