Case update – Fair Work Commission finds employee unfairly dismissed in a forced resignation

The recent decision of Adela Werner v SkinKandy in the Fair Work Commission underscores the importance of addressing workplace complaints promptly and fully,[1] and properly interrogating hasty employee resignations. This highlights how the failure to do so can amount to constructive and unfair dismissal.

Background:

• Ms Werner (the Applicant) began her employment with SkinKandy in January 2022 as a casual body piercer and retail assistant, transitioning to a management role in May 2023.
• In late 2023, after experiencing personal losses due to the crisis in the Middle East, she took compassionate leave. She later requested additional leave, which was denied due to the nature of her role.
• In early 2024, the Applicant sought a flexible work arrangement to prioritise her mental health and religious needs, including observing shabbat which was agreed by her area manager.
• In March, after a new manager, Ms Sullivan, was appointed, the Applicant was told she must return to regular work patterns, including Saturdays.
• A miscommunication in a meeting led the Applicant to believe she could continue her alternate Saturday shifts, while Ms Sullivan believed the Applicant agreed to work all Saturdays.
• The Applicant amended her roster as she believed was agreed upon, Ms Sullivan then made unilateral changes to the Applicant’s roster. It was unusual for Ms Sullivan to make changes to the roster, as the Applicant’s position gave her discretion to determine her shift and rostering arrangements.
• In April, the Applicant became aware that Ms Sullivan had told colleagues she was “going to get rid of” the Applicant even before the roster dispute. Consequently, the Applicant believed that Ms Sullivan was intent on dismissing her, leading her to file a workers compensation claim for mental injury due to bullying.
• The Applicant also made a formal bullying complaint to her National HR Manager and advised that she was unfit for work.
• The Applicant was diagnosed with anxiety, depression, and stress.
• The Applicant’s workers compensation claim was denied, and shortly thereafter she became aware that her picture had been removed from the staff notice board.
• The National HR Manager told the Applicant in May that she had begun investigating the bullying complaint, but stated the investigation was contingent on resolving the rostering dispute.
• The HR Manager also informed the Applicant that she had begun a separate investigation for an alleged breach of confidentiality, relating to the Applicant contacting several employees about her bullying investigation.
• In July, the HR Manager discussed the Applicant’s return to work, but said she would not progress the bullying investigation until the Applicant returned to work, while also noting the Applicant’s refusal to work under Ms Sullivan.
• Consequently, the Applicant’s legal representatives proposed “an amicable ending to her employment relationship”, but the HR manager rejected the proposal.
• The Applicant resigned in early August. On opening her work WhatsApp account, she discovered that she had been removed from all company groups before her resignation had been accepted or acknowledged. This confirmed the Applicant’s belief that SkinKandy was intent on forcing her to resign.
• The HR manager later told her she needed to provide eight-weeks’ notice or resign immediately and forego her notice payment, and the Applicant chose to resign immediately.
• At the time of the unfair dismissal hearing, SkinKandy still had not completed the investigation of the Applicant’s bullying complaint.

Decision

The Commission found that the Applicant had “legitimate grounds to believe she was being bullied” by Ms Sullivan, and this treatment would have led the Applicant to conclude she had no option but to resign.

Whilst Ms Sullivan’s interference with the Applicant’s roster was the initial trigger for the Applicant’s perception of bullying, the situation was further exacerbated by the HR Manager’s failure to progress or resolve her bullying complaint, leading to her forced resignation.

Commissioner Connolly stated that in addition to the above conduct, the employer’s actions — including:

• initiating a retaliatory breach of confidentially complaint against the Applicant; and
• removing the Applicant from the company WhatsApp group before the Applicant had confirmed her resignation —

supported a conclusion that SkinKandy’s conduct left the Applicant with “no effective or real choice but to resign.”

The Commissioner also noted that the HR Manager’s demand for an eight-week notice period was inconsistent with the Applicant’s contract, which required only six weeks.

The Applicant’s resignation was found by the Commission to be a dismissal at the initiative of the employer. Therefore, the Commission considered the unfairness of the dismissal. As the Commission determined there was no valid reason to terminate the Applicant, the dismissal was found to be unfair.

The Commission found that if the Applicant had not been unfairly dismissed, she would have remained employed for an additional 12 weeks. During which, SkinKandy could have concluded the bullying investigation, allowed the Applicant to respond to its findings, and completed her six-week notice period.

Because the Applicant remained on unpaid leave for about half of that period, the Commission considered her entitled to $6,250, plus $718.75 superannuation. However, because SkinKandy contributed to her absence, the compensation was increased by a further three weeks’ pay. SkinKandy was ordered to pay $8,733, plus $1,004 superannuation.

Lessons for employers

1. Even if an employee resigns, it is important that their complaints are investigated promptly, fairly and fully.
2. If an employee resigns, employers must take steps to confirm the resignation is genuine and intended, and not a heat of the moment or frustrated resignation.
3. Employers should not take any steps that could be perceived as forcing an employee exit (i.e. removing their name from rosters, taking their photo down from the staff room or removing them from WhatsApp groups) before the resignation is confirmed.
4. Employers should tread carefully when negotiating notice of termination upon an employee resignation. This is a delicate exercise — notice should be paid in lieu if the employer no longer requires the employee to work, unless the employee genuinely requests to forego their notice period, and it is agreed that the employee will exit early.

Please contact our Employment, Discrimination and Equality Team for more information or to discuss your circumstances.

[1] Adela Werner v SkinKandy VIC Pty Ltd T/A SkinKandy [2025] FWC 389.