The Case

Burgess v Optus Administration Pty Ltd T/A Optus (2021)

Optus employed Mr Burgess as a strategy and reporting analyst. Mr Burgess was placed on a number of performance improvement plans (PIP). Each time Mr Burgess’ performance did not improve, he was issued with a formal warning. The warnings indicated that termination of Mr Burgess’ employment was a potential consequence if his performance did not improve.

During this PIP process, Mr Burgess made several bullying complaints, which were investigated and found not to be substantiated.

During the last PIP process, Mr Burgess was again reminded his employment was at risk. He thereafter took extended personal leave and resigned, claiming he needed to leave because of health problems caused by the bullying. Optus invited Mr Burgess to withdraw his resignation, however he declined. As such, Optus finalised his employment.

Mr Burgess thereafter made an unfair dismissal application claiming that he had been constructively dismissed. Optus raised a jurisdictional objection to the claim on the basis Mr Burgess had not been dismissed.

The Verdict

The Fair Work Commission (FWC) dismissed Mr Burgess’ claim for unfair dismissal. The FWC held:

• the PIPs implemented by Optus were designed to assist Mr Burgess to improve his performance;
• the PIPs set clear outcomes to be achieved, actions to be taken and the support to be provided, which constituted reasonable performance management;
• no bullying had occurred;
• Mr Burgess had received appropriate written warnings advising him that termination of employment was a consequence if he failed to improve his performance; and
• Mr Burgess had not been forced to resign and no dismissal had occurred at the initiative of Optus.

The Lessons

Employees who claim constructive dismissal must show that there was no other option available to them than to resign. This case demonstrates the importance of having clearly constructed PIPs, following those PIPs and issuing warnings that explain that termination of employment is a potential consequence of failure to improve.

While Optus did offer Mr Burgess the option of withdrawing his resignation, this is not required. Any resignation by an employee that is not forced can be accepted.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.