VIC Employment Law - Resignation Rescinded but Dismissed by Employer?

[Disgruntled]

I have been employed as a bookkeeper for four years. I started a relationship with a fellow colleague. In January 2017 I handed in my resignation in writing but rescinded it the same day and this was accepted albeit not in writing. I continue to work and get paid.

On Wednesday 5th April 2017 my employer said he wanted to bring the resignation letter back into the equation and asked me to start looking for another job. I told him that we had agreed that it was rescinded. I told him I had no intention of leaving and he said under the current circumstances regarding my relationship with a colleague he felt it was best that I move on.

I followed up with an email stating that my letter of resignation was rescinded and that I have no intention of leaving. He didn't reply but has placed an advertisement to find a replacement for me.

What are my rights as an employee under employment law? He wants me to train this new person and said he will allow me time off to go for interviews etc. I don't want to leave my job and he has said in his own words I am one of the best employees he has had.

Please help. I do not know what to do.

 

[Rob Legat - SBPL]

This isn't discrimination, unless there's some factor which you haven't relayed.

However, it may amount to unfair dismissal. Asking someone to resign, in most instances, equates to a constructive dismissal.

If you want to keep your job, I suggest you try to talk it through with them and find out if there's a way to put some conditions in place so that they feel more comfortable about your workplace relationship.

This may, of course, not work. Or maybe it's something you're not prepared to do. If your position is terminated, you have 21 days from the date the dismissal takes effect to make an application to the Fair Work Commission for unfair dismissal.

If your workplace has less than 15 employees, your employer may try to claim that unfair dismissal does not apply due to the small business exemption. However, constructive dismissal does not provide him with protection under the Small Business Fair Dismissal Code.

 

[Rod]

You are correct in that the letter of resignation has been rescinded and can no longer be used by the employer.

The tricky part is your relationship with another employee. Workplace relationships are fraught with problems (eg favouritism, revenge etc).

If the relationship is affecting work it can be grounds for dismissal and this will be an objective test.

At the end of the day however it seems likely you will be out of a job one way or the other unless you can convince the employer it is to his benefit in having you stay. Otherwise see what you can negotiate for an exit on your terms. If you co-operate, maybe extend employment until you find other work and ask for a good reference.

If you dig your heels in and he dismisses you and you go for unfair dismissal you may well get a payment but you'll still be out of the job.

 

[Disgruntled]

Thank you for your answers. My work has not been affected for the 16 months that I have had this relationship. I am not directly involved with him in the workplace however my employer says it has to do with a trust issue.

He cannot have his bookkeeper involved with another employee although I have keep complete discretion where my job is concerned. I pride myself on that. Seems I have no rights here.

He can just employ someone to directly replace me and I'm just out of a job. Totally unjust and he's protected under the law because he is considered a small business.

How does my personal relationship have anything to do with him? Seems I shouldn't have told him and all would be fine.

 

[Rod]

Seems I shouldn't have told him and all would be fine.

Hindsight would be a wonderful gift to possess. Telling him though is in your favour if it comes down to an unfair dismissal. You demonstrated trust by confiding that you are in a relationship.

he's protected under the law because he is considered a small business

Ummm, no he is not protected. Prima facie you have a good case for unfair dismissal if it happens.

Your emotions seems to getting the better of you. It is a hard situation but you need to look unemotionally at what is now in your own best interests.

Read my post above again without emotion and see if it changes your thinking.