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  • Mark Shaw

"Traumatised" employee didn't genuinely intend to resign

An employee's resignation was "a cry for assistance" after a traumatic incident at work, but her employer's response was "frankly, unhelpful" and bureaucratic, the Fair Work Commission has found.

When the process trainee began working for Anglogold Ashanti Australia at the Tropicana gold mine in April this year, she notified it that she suffered from serious food allergies, and the employer agreed to make arrangements for her to avoid food that would cause health issues.

A few weeks later, the employee ate icing on a cake provided by her supervisor without checking the ingredients, and had an allergic reaction that required medical treatment.

She quit three days after the incident, but following a meeting with the employer to discuss ways to improve workplace food safety, she asked to retract her resignation.

The employer, however, sent her a letter the next day accepting that her employment had ended.

The employee subsequently made a general protections claim, to which the employer objected on the basis she hadn't been dismissed.

It told the Commission the employee's resignation, which was "clear and unambiguous", wasn't made in the heat of the moment and therefore it wasn't required to "confirm [her] intent".

The employer said it didn't try to "talk her out of it" as she sent the email on a Saturday, which meant there was a "delay in processing it", and allowing her to revoke her decision was "not something the HR department could commit to without consultation".

It added that its conduct didn't prompt the employee's decision; rather, the employee failed to ensure her own health and safety in not checking the icing ingredients, and instead of "meaningfully" engaging with it on the issue, she "simply resigned".

But the employee argued that her safety was compromised when her supervisor, who knew of her condition, ordered a cake containing products that could – and did – induce an anaphylactic reaction.

She believed the employer had failed to properly address her individual needs, and said the difficulties she had faced in finding safe food to eat at work were exacerbated by its failure to ensure all food was labelled, as it had undertaken to do.

Employee resigned in "a state of high stress"

Deputy President Peter O'Keeffe accepted the employee had originally "clearly indicated an intent to resign".

The employee claimed she had been "traumatised" by her reaction and, given her evidence about the "practical difficulties in getting enough to eat", the Deputy President found the cake incident added to her "already high load of stress".

Further, the employee said she didn't expect the employer to accept her resignation, which raised the possibility that her decision "was more of a cry for assistance rather than a genuine expression of an intent to resign", he added.

He said the fact that, shortly after she quit, the employee discussed site food safety with the employer and two days later asked to retract her resignation, was evidence that "at the very least" she was not "absolute" in her intention.

Deputy President O'Keeffe also said he was "concerned" about the employer's response to her request, noting that when he sought to understand its motivations, the answer he received was "frankly, unhelpful and could be distilled down to 'bureaucratic intransigence'".

The employer "ought to have made further inquiries into [her] true intentions" before accepting her resignation, he said.

As a result, the employee was dismissed at the employer's initiative, Deputy President O'Keeffe found, in clearing her to pursue her general protections claim.

SOURCE: Rutter v Anglogold Ashanti Australia Limited [2023] FWC 1891 (31 July 2023)

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