We were recently reviewing a Fair Work Commission decision dealing with the workers claimed that they were fired after exercising their right to take sick leave as a result of a long term illness. This raised a number of interesting insights around how the situation was managed by the employer and indeed if the employee was forced to resign.

The scenario was fairly simple around six months into the employees employment they fell ill, used up all the sick leave, and after several months of absence was unable to provide the employer an indication as to when they would be reasonably expected to return to work.

Throughout the conversations, the employer requested the employee to return a company vehicle which the employee alleged caused him significant stress. And most interesting to us, the employer suggested that the employees absence was causing harm to the business and suggested that perhaps and amicable agreement could be reached to conclude the employment with the provision of three weeks pay.

The employee argued that consistent requests around when he would return to work, request to return the company vehicle and the suggestion of wrapping up his employment amounted to a forced resignation.

The Fair Work Commission ultimately found that although the employer put forward an option for the employee to conclude their employment, this in no way amounted to coercion and the employee at all times could have chosen to continue their employment.

Now why we find this case so interesting is that commonly when faced with a challenging performance management or other employee situation, we have found a great strategy to  discuss and formalise mutually agreeable terms to conclude the employment instead of continuing through what could be an ugly process. Now often these mutually agreeable arrangements are beyond what the statutory entitlements are for the employees, and as a result we have found best practise to wrap these up in a deed of release.

This decision by the Fair Work Commission add further credence to this strategy by acknowledging both employer an employee as “adults” who are able to have a discussion and resolve an issue in an amicable way without power imbalance.

Now these are complex negotiations, however, can often result in outcomes that benefit all parties. If your business is faced With the challenging situation and you can’t see light at the end of the tunnel, why not give us a call we might be able to help.