FWC probes supervisor's circumstances to check if resignation was voluntary
The Fair Work Commission (FWC) recently dealt with a general protections dispute involving the dismissal of a worker from a home building company in the Agnes Water/Seventeen Seventy area.
The worker, a 55-year-old widow who worked as a trades' assistant, claimed that she was forced to resign due to the conduct of her employer, while the employer argued that the worker voluntarily resigned and was not dismissed.
This case involved a series of complex issues, including allegations of workplace bullying, theft, and time fraud. The worker, who was promoted to a supervisory role titled "head trades assistant," claimed that her colleagues, including a builder, an apprentice builder, and other employees, embarked on a course of action to force her to leave her job.
The employer, represented by the general manager, maintained that the worker resigned on her own accord and was not dismissed within the meaning of the Fair Work Act 2009.
The worker started a casual assignment with the employer in May 2021. By early 2023, she reported concerns about being bullied by the builder, apprentice builder, and another employee.
She also alleged that the builder and apprentice builder were stealing supplies, and several employees were engaging in time theft.
On 14 March 2023, the worker resigned from her employment but was convinced by the general manager not to resign. Instead, she was offered a promotion to the supervisory role of head trades assistant with increased responsibilities, including managing stock control, monitoring systems, and closely supervising employees allegedly involved in misconduct.
The worker's new role required her to introduce a photo system and a timesheet system called Sitebook to address the issues of theft and time fraud. She regularly worked overtime and was paid a flat rate of $35 per hour, which she felt was lower than the male supervisors' rates of $42 to $50 per hour.
The worker claimed that the builder and apprentice builder stole supplies, including two 90 x 90 merbau posts and two slabs of hardwood, from a worksite to make a bed for the builder's daughter.
She informed the employer's management, including the general manager and the building director, and obtained footage of the suspected theft. However, she felt that a proper investigation was not conducted, and the employer found a way to excuse the builder's actions.
The worker also had difficulties dealing with the builder's hours of work and the hours he claimed. She believed that he would stay home or work for a couple of hours yet claim hours for a full day's work.
Despite her efforts to address these issues, she felt that the employer's management did not adequately address the builder's misconduct.
The worker claimed that she was subjected to bullying and harassment by her colleagues, particularly the builder, apprentice builder, and another employee. In one instance, she had a heated exchange with the apprentice builder who refused to assist her with a task.
She admitted that her language and behaviour were not professional but stated that she was too frightened to walk away or turn her back as she was under the impression that the apprentice builder was a drug user and could be unpredictable.
The worker also provided text messages exchanged with the builder and another employee, which she believed demonstrated their disrespectful and threatening behaviour towards her. These messages were sent outside of work hours and contained derogatory language and personal attacks.
On 19 July 2023, the worker resigned from her employment by sending a text message to the site supervisor, stating:
"Good morning mate, I am tendering my immediate resignation this morning. I want to personally Thankyou for being an awesome boss and wish you well in the future. I returned my shirts to the office this morning which I have put on your desk. The key to the end shed, CQs key and the fuel card and receipts are all in the top draw of the desk. I have the office key which I will drop to your car this morning. (could not lock the office without it sorry) Take care Kind regards."
The central issue before the FWC was whether the worker was forced to resign due to the conduct or course of conduct engaged in by the employer.
The employer argued that the worker was not dismissed within the meaning of the Fair Work Act 2009.
The general manager gave evidence that the worker was offered a promotion to a supervisory role and was given increased responsibilities to address the issues of theft and time fraud.
The general manager claimed that the worker's allegations of misconduct against her colleagues were investigated, but there was insufficient evidence to substantiate the claims.
After considering the evidence presented by both parties, including witness testimonies from the worker, general manager, finance manager, site supervisor, builder, and apprentice builder, the FWC made the following findings:
"The consideration before the Commission is whether [the worker] was forced to resign from her employment because of conduct or a course of conduct engaged in by the [employer]."
The FWC noted that the worker had raised serious allegations of misconduct against her colleagues, including bullying, theft, and time fraud. However, it found that the employer had taken steps to investigate these allegations and had offered the worker a promotion to a supervisory role to address these issues.
While the FWC acknowledged that the worker faced difficulties in her new role and had concerns about the conduct of her colleagues, it ultimately found that she was not forced to resign due to any conduct or course of conduct engaged in by the employer.
The FWC determined that the worker had voluntarily resigned from her employment and was not dismissed within the meaning of the Fair Work Act 2009. As such, the FWC did not have jurisdiction to deal with the worker's general protections dispute application.
