People and culture business partner 'instigated the dismissal,' says worker
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed that he was dismissed by his employer in contravention of the general protections provisions under the Fair Work Act 2009 (Cth). The employer objected to the application, arguing that the worker was not dismissed.
In this case, the FWC had to determine whether the worker's employment was terminated on the employer's initiative or if it ended by mutual agreement.
The decision sheds light on the complexities of determining the nature of an employment termination and the importance of clear communication between employers and employees.
Background and evidence
The worker started his full-time employment with the employer on 18 March 2024. Shortly after, on or about 26 March 2024, he suffered from a medical episode that hospitalised him and rendered him unable to communicate with others, including his employer.
As a result, he did not attend work on 27 or 28 March. The employer made efforts to contact the worker, but these efforts were unsuccessful. They asked the police to conduct a welfare check on the worker, but in the absence of full details of the worker's address, the police were unable to complete the check.
The worker was released from hospital on 3 April 2024 and attended various medical appointments on 4 April. On 5 April, he received a call from his manager and explained his absence.
According to the worker, he asked if he could come into the office to discuss returning to work but was told that the manager would be on leave for two weeks and would call him upon her return. The worker said he did not receive a further call from the manager.
On 9 April 2024, a critical telephone conversation occurred between the worker and the employer's People and Culture Business Partner. The parties provided differing accounts of this conversation, which became the focal point of the case.
Parties’ arguments
According to records, the worker said that he was notified of his dismissal during the conversation on 9 April 2024. He argued that the employer had already formed a view that his employment should be ended and that the People and Culture Business Partner was seeking to press that position on him while he was vulnerable due to his mental health situation and absence from work.
The worker's version of the conversation was as follows:
People and Culture Business Partner: “I don't need to see the discharge papers as I likely wouldn't understand anything on there. We are not confident in your ability to perform the job since you didn't let us know you wouldn't be coming in for work on 27 March 2024.”
Worker: “I was not able to call that day due to my circumstances.”
People and Culture Business Partner: “I understand that. You are a great fit culturally and we would love to work with you in the future, why don't you check in again in a month, then 3 months, then 6 months because maybe you would want to come back and do something else with [the employer].”
Worker: “Absolutely, I will send back my laptop and other assets I have.”
On the other hand, the employer submitted that there was no termination of the worker's employment on 27 March, 9 April, or at any other time.
They argued that the evidence showed that the worker said he was unable to commit to ongoing employment during the conversation on 9 April, and the employment relationship ended by mutual agreement on that date.
The employer relied on the People and Culture Business Partner's version of the conversation:
People and Culture Business Partner: “I wanted to talk to you about your commitment to your new role at [the employer] as you have not been working and have not communicated with us. I am concerned that you are not able to commit to the position. What are your thoughts?”
Worker: “Yes, I agree. I am not able to commit to the role at the moment.”
People and Culture Business Partner: “I understand. You are a great candidate and I encourage you to reach out to us to discuss any roles in the future that might suit you when you are able to commit to working.
Worker: “Yes, thanks. I will do that. I appreciate your understanding.”
Moreover, the employer’s People and Culture Business Partner “denied that she instigated the dismissal of the worker. She said that she expressed concern for [him] and sought [his] perspective on his ability and desire to undertake the role. She said she understood from the conversation that the [worker] had elected to end his employment on 9 April because of his health circumstances.”
FWC's consideration and decision
The FWC considered the evidence provided by both parties and the legal principles surrounding the meaning of "dismissed" under the Fair Work Act. The key question was whether the worker's employment was terminated on the employer's initiative or if it ended by mutual agreement.
The FWC noted that termination "on the employer's initiative" is a termination that is brought about by an employer and which is not agreed to by the employee.
The focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
The FWC found that the worker's employment came to an end on 9 April 2024, stating:
“The worker's employment came to an end on 9 April 2024 when it was mutually agreed between the parties that this should occur. There was no termination of employment on the initiative of the employer.”
In reaching this decision, the FWC preferred the evidence of the employer's People and Culture Business Partner regarding the critical conversation on 9 April.
The FWC accepted that she went into the conversation with a genuine desire to obtain the worker's explanation of events and his thoughts about whether he was able to continue in his employment, rather than attempting to trigger a resignation or otherwise initiate the termination of the worker's employment.
The FWC also noted that the worker did not take issue with the events of 9 April until he received a letter on 12 April 2024, which incorrectly stated that his employment concluded on 27 March.
The FWC found that this mistaken assertion by the employer did not alter the conclusion reached about the conversation on 9 April or its effect.
Ultimately, the FWC dismissed the worker's application, finding that:
“The worker's employment came to an end on 9 April 2024 when it was mutually agreed between the parties that this should occur. There was no termination of employment on the initiative of the employer.”
This FWC decision highlights the importance of clear communication between employers and employees, particularly in situations involving medical absences and potential termination of employment.
