Case explores boundaries between personal relationships and work obligations
The Fair Work Commission recently dealt with an unfair dismissal application under section 394 of the Fair Work Act 2009. A worker with 17 years of service claimed he was forced to leave his position after his son took a job with a competitor.
The worker argued his employer saw him as a "commercial risk" because he lived with his son and was told to leave by 1:00 PM that same day. His employer maintained that he had voluntarily resigned during their meeting.
The case focused on whether the worker was dismissed within the meaning of section 386 of the Fair Work Act 2009, with both parties disputing what occurred in a crucial meeting.
The worker was a 69-year-old accounts manager who had moved to Australia in 1999. He started with the company in 2007 as a bookkeeper before becoming an accounts manager. He managed accounts for multiple legal entities, including the main company and related businesses.
His son resigned to join Encore Monitoring, a direct competitor that had previously been a distributor for the employer. The employer was particularly concerned because Encore had secured several of their customers and employed many former staff members.
The worker had significant access to sensitive information, including contracts with the Australian Defence Force. The employer noted the worker had a habit of writing down passwords and leaving them visible near his computer.
The employer's Chief Executive Officer testified he wanted to discuss secure work practices with the worker due to the son's new employment. The worker claimed the Chief Executive Officer said he "could not keep" him due to the commercial risk.
The Commission found neither account fully credible, stating: "I am not persuaded by the version of events as presented by both [the worker] and [the employer]... what occurred in the meeting on the morning of 28 June 2024, sits somewhere between the accounts I have been provided."
After the meeting, the worker left by 1:00 PM. The employer continued paying his salary until July 23, 2024, though the worker never returned to work.
When directed to return, he maintained through his lawyers that his employment had already ended on June 28.
The Commission determined the worker's employment ended through termination by the employer on July 23, 2024.
It found the worker had not given an "unequivocal or unconditional resignation" on June 28, as any resignation was subject to agreeing on separation terms.
The Commission stated: "The direction to [the worker] to return to work was a lawful and reasonable direction in the context where the parties were unable to finalise a mutual agreement regarding [the worker's] departure from the business."
The final decision noted: "[The worker's] refusal to return to work and insistence that he had been dismissed, gave rise to circumstances where his dismissal was inevitable. The sanction afforded, whilst regrettable given the personal relationship that had existed between [the CEO] and [the worker] and his long tenure with [the employer] business, was not disproportionate."
The unfair dismissal application was dismissed.
