In unfair dismissal case, employer argues worker had choice to stay or resign
The Fair Work Commission (FWC) recently decided on a case of a worker who said she was unfairly dismissed from her employment. She alleged that she was terminated by the company following a series of heated discussions with one of the directors.
However, the employer said that the worker resigned from her position and the termination was not at the initiative of the employer.
The events that transpired included a confrontation between the parties about the worker’s alleged undermining behaviour and a subsequent conversation in which the director offered her the opportunity to continue working for two more days.
Liane Trainor, a former casual employee at Wild West Pty Ltd's recycling facility in Mandurah, Western Australia, filed an application with the FWC, alleging that she was unfairly dismissed from her employment.
The employer objected to the FWC dealing with the application, arguing that Trainor resigned her employment and the termination was not at the initiative of the employer.
Trainor, who started her job on 21 May 2021 and typically worked five days a week from 9am to 2pm, claimed that she was terminated by the employer on 27 October 2023.
She alleged that on 25 October 2023, she was subjected to hostile, unjustified, and aggressive allegations from Suezette West, a director of the employer, who allegedly gave her an ultimatum to comply with her instructions or leave her employment.
According to Trainor, she was upset and given permission to leave work by Terry West, the other director, and advised to return on 27 October 2023.
However, upon her return, she claims that Suezette West queried why she was in attendance, stating that she was no longer employed. Trainor submitted that these words communicated a termination of her employment.
Trainor's evidence suggested that the situation began on 25 October 2023 when Terry West gave her instructions on how to perform her job, which conflicted with those given by Suezette West.
She claimed that when she raised this discrepancy with Terry West, Suezette West approached her in a furious and aggressive manner, challenging her about her behaviours at work and warning her not to try to "white ant" her.
Trainor stated that the interaction ended with Suezette West saying, "If you don't like what I am saying, take your shit and leave."
She then sought permission from Terry West to leave work, which was granted, with him telling her to take the rest of the day off, enjoy her day off tomorrow, and return on Friday.
According to Trainor, when she returned to work on 27 October 2023, Suezette West was waiting for her in the driveway and said, "What the hell are you doing here?" and "No, you're not you no longer work here."
Trainor claimed she then approached Terry West to clarify if she had been terminated, and he said he would speak to Suezette West.
Trainor provided a recording of the interaction between herself and Suezette West on 27 October 2023, which the FWC admitted into evidence despite potential concerns about it being made covertly.
In the recording, Suezette West can be heard offering Trainor work for that day and the following day, stating, "We'll see how it goes but no more going back to Terry and no more trying to make trouble."
Wild West Pty Ltd argued that Trainor resigned of her own accord and was not dismissed. The employer submitted that Trainor's actions, such as leaving the workplace without permission following a heated discussion with Suezette West, declining to work her remaining shifts for that week, and making the comment "Have a nice life and good luck" to Terry West on her way out, led the employer to reasonably conclude that she would not be returning to work.
In her witness evidence, Suezette West stated that she had spoken to Trainor on 25 October 2023 about confusion over her duties and commented that she felt Trainor was not adequately performing her employment duties.
She claimed that Trainor responded by questioning what part of her job she was not doing and walked off before West had finished speaking.
Regarding the events of 27 October 2023, Suezette West claimed that Trainor arrived at work and walked past her without putting her personal items down, proceeding to speak to Terry West.
She stated that during their subsequent discussion, which Trainor recorded without permission, she told Trainor she could work that day and the following day, and they would "see how it goes," meaning that her employment would be ongoing if they worked out their differences.
Suezette West alleged that Trainor responded by saying she wouldn't be doing West any favors, had been recording everything to put on Facebook, and told West to watch her back before leaving. West maintained that she did not dismiss Trainor at any time.
Terry West's evidence suggested that on 25 October 2023, he observed Trainor and Suezette West having a heated conversation, after which Trainor advised him that she did not want to finish her shift. He allowed her to leave work, and she told him to call her when he wanted her to return.
On 27 October 2023, Terry West claimed that Trainor approached him asking what was happening, and he advised her to clear the matter up with Suezette West.
He stated that the next interaction he had with Trainor was when she approached him, saying she was leaving and wishing him a good life and good luck, which he took to mean that she would not be returning to work.
The FWC examined the events that took place on 25 and 27 October 2023. It found that on 25 October, Suezette West had a frank conversation with Trainor about her concerns that Trainor was undermining her.
This conversation caused shock and anxiety for Trainor, who then sought support from Terry West, another director of the company.
On 27 October, when Trainor returned to work, Suezette West reacted by asking why she was there and stating words to the effect of "You no longer work here."
However, the Commission found that these comments did not amount to a termination of employment. In a subsequent recorded conversation, Suezette West offered Trainor the opportunity to continue working for the next two days, saying "We'll see how it goes."
The FWC determined that regardless of how this offer was interpreted, Trainor had the choice to remain employed for those two days. If her employment continued beyond that, she would have no issue with her employer.
If it ended, she could then lodge an unfair dismissal claim. Instead, Trainor chose to end her employment at that point.
The Commission noted that even if Suezette West's initial comments on 27 October could be construed as a termination, that termination was withdrawn within five minutes, and Trainor's employment was reinstated. By choosing not to remain employed, Trainor had effectively resigned.
While Trainor had the option to argue that her resignation was forced by her employer's actions, she clarified during the hearing that she was not pursuing this argument and was instead claiming that she had been terminated by Suezette West's comments.
As the FWC found that Trainor's employment ended due to her resignation and not at the initiative of Wild West Pty Ltd, the Commission determined that it did not have jurisdiction to deal with her unfair dismissal claim, and her application was dismissed.
