Pre-school teacher’s resignation upheld as constructive dismissal & wins her old job back after going for unfair dismissal

Childcare centre Employment

A 70-year old woman was hired as a University-Qualified Early Childhood Teacher. She had a contract from March 2014 until January 2019. She was re-hired for the same position on April 2019 until December 2019 when she resigned. The employer was a childcare centre.

In January 2019, her employment ended because enrolment in the Vaucluse child care centre had dwindled. The pre-school teacher worked for another childcare operator.

When her former employer’s childcare centre at Bondi advertised an opening, the applicant applied for that vacancy. She was hired to teach pre-schoolers. She had indicated at the time of her hiring that she had left her employment with another childcare operator because she was required to look after 1-3 year old children instead of teaching preschool when she was hired as a pre-school teacher.

New job required to change diapers

On 19 December 2019, at a meeting with the HR Manager, the pre-school teacher was informed that the pre-school teacher’s position belonged to another teacher who had left for Ireland but was coming back. Thus, the employer had decided that the pre-school teacher was to be permanently transferred to their childcare centre in Narwee and that at Narwee, the pre-school teacher would be caring for children aged 0-3 years of age and she would be required to change diapers. Also, she will work only 2 days per week in 10-hour shifts.

The pre-school teacher was visibly upset when she received the news of her transfer and her new duties. The HR Manager told her “Don’t tell me you don’t want to do nappies, the decision’s been made”. The pre-school teacher cried and said that she was not ready to retire. She asked to be allowed to go home but the HR Manager refused and told her to finish her shift.

When the teacher received the email informing her of her transfer and her new work, the teacher sent the employer a letter from her solicitors telling her that their decision to transfer her and change her work duties constituted a breach of her employment contract.

Employee resigned

She tendered her resignation but warned the employer that she has deemed their conduct as a constructive dismissal and her resignation, a forced resignation.

Fair Work Commission findings

The Fair Work Commission held that a person is considered as having been “dismissed” if their employment has been terminated at the employer’s initiative or if the person was forced to resign from their employment because of the employer’s conduct.

No choice but to resign

The pre-school teacher resigned because of the actions of the employer. Although the employer never told the pre-school teacher to “resign or be dismissed”, still, the actions of the employer gave the pre-school teacher no other course of action but to resign.

Management decided without employee input

The words used and the manner the words were used to break the news to the pre-school teacher that she was being transferred all suggest that the employer’s conduct caused the pre-school teacher to resign: she was told that management had already decided that she will be transferred, it was a fait accompli; the pre-school teacher was not consulted about that decision; her work hours would be reduced and the new assignment included work that the pre-school teacher did not want to do, and the new workplace was 20 km away.

Another indication that the pre-school teacher was “forced” to resign was when the payroll master sent the pre-school teacher an email asking her to confirm her acceptance of the transfer and the pre-school teacher did not reply. The HR Manager then sent the pre-school teacher an email telling her to reply to the payroll master so they can confirm the roster for the coming week and that if they did not hear back from the pre-school teacher, her “failure to reply will be taken as non-acceptance of the transfer/ position in the organisation”.

When the pre-school teacher’s solicitors emailed the payroll master stating that if they forced her to transfer, then she would have no other recourse but to resign, the payroll master replied that if the pre-school teacher will resign, then they will accept her resignation. The FWC found that the employer was comfortable with the resignation because that was what they had intended all along by proposing the transfer.

Employer showed no compassion

It is true that the pre-school teacher agreed in her employment contract that she was willing to be employed at “Bondi or elsewhere she was reasonably directed”, however, the request to transfer to a workplace located 20 km away would not be reasonable. The travel time required and expense of the travel would be excessive especially since the pre-school teacher would be working a part-time position of only 20 hours a week. The transfer altered the work hours of the pre-school teacher – thus, the transfer was not to a substantially similar position.

The HR Manager’s conduct and dealings with the pre-school teacher showed an absence of compassion, respect, dignity or kindness toward the pre-school teacher.

The pre-school teacher was to be transferred because a former employee was coming back. Other than this, there was no discernible basis for the transfer. There were no performance or conduct issues that arose from the pre-school teacher’s work. More importantly, the pre-school teacher’s employment was covered by a modern Award that provided a consultation prior to transfer and being offered part-time employment if full-time employment was not available.

The resignation was caused by the employer’s unlawful and unreasonable conduct, thus, it was a dismissal that had no valid grounds.

Teacher gets her job back

The pre-school teacher was reinstated to her former position as she had asked in her application and the employer was ordered to restore her lost pay, the amount of which will be determined after submission of evidence.