Employer wins against worker who refused shifts over fight with manager

The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was forced to resign due to his dissatisfaction with a workplace investigation. The incident involved an alleged “verbal altercation” between him and his direct line manager about mandatory procedures at their workplace.

The worker, Vathana Pen, filed a case before the FWC, seeking an unfair dismissal remedy against Octopus Fishing No.2 Pty Ltd. The parties' dispute revolves around the nature of the worker's engagement as a casual employee, specifically in the role of Deckhand - Level 2, a position he started on 12 April 2021.

The employer rejected his claim and said he was not dismissed by its initiative. It maintained that the worker was offered opportunities to accept shifts but repeatedly declined. Essentially, he chose not to work.

According to records, the worker was primarily responsible for duties aboard a fishing vessel, serving as one of three crew members.

During his employment, he predominantly worked on the "Natural Selection" vessel based in Two Rocks, Western Australia. The worker also performed tasks on the "Midas Touch" vessel in Lancelin, Western Australia.

Tensions after workplace complaint

Tensions arose from a workplace complaint initiated by the worker related to an incident involving him and his direct line manager, which occurred on board the "Natural Selection."

The incident involved alleged mandatory procedures about their duties, and the worker claimed that his manager made statements that he interpreted as “threats” to his employment.

According to the worker, his manager said the following:

“You can look for another job where you can leave at 12 o’clock,” and

“I don’t want to have to fire you because you are such a good worker.”

A subsequent meeting between the parties took place on 28 March 2022 to address the workplace complaint. The worker said he left feeling that his concerns remained unresolved, while the employer believed the matter had been properly addressed.

Notably, after this meeting, the worker informed the employer of his intention to return to Cambodia due to a family emergency, and there was no communication between the parties until 20 April 2022.

On 21 April, the worker messaged the employer, expressing his dissatisfaction with the prior meeting's outcome and requesting a formal investigation into his complaint against his manager.

Simultaneously, the worker declined future work with the employer and sought to reopen the workplace complaint. The employer asserted that the investigation was concluded since his complaint was “not substantiated” and that they wouldn't continue discussions on the matter as they considered it resolved.

The employer said the worker was never dismissed at its initiative and argued he chose not to accept further work.

HRD previously reported on the unfair dismissal claim of a worker who said he was dismissed after “a heated exchange” with his manager and co-worker.

No communication between parties

The FWC noted that the incident between the worker and his line manager occurred on 27 March 2022. “The worker, following an extended period away from the workplace, returned from overseas and requested an investigation into the workplace incident,” it said.

“He held issue with his direct line manager following the alleged verbal altercation on 27 March 2022. The [employer] attempted to mediate and resolve the issue between [him] and [his manager] in an informal manner, [but the worker] was then absent from the workplace of his own choosing from 28 March 2022 as he was attending to family matters overseas.”

While the worker was tending to his family, the employer said that it was communicating with him about future shifts, but he did not respond.

Worker has right to reject further work

Additionally, the Commission noted that the [worker] was not satisfied with the outcome of the investigation and, subsequently, rejected the opportunity for further work with the employer.

“Such is the [worker’s] right as a casual employee,” it added. The FWC further said that it wasn’t satisfied that the employer’s conduct left him with no other option but to resign from his employment.

“Rather, the [worker] was not satisfied with the outcome of the investigation and decided to forgo further work. The [employer] took reasonable action to manage the workplace complaint of the [worker],” the Commission said.

Thus, it said the management did not dismiss him. The FWC then rejected the worker’s application.