Dismissal case highlights 'sensitivities' of 'new people in the workforce'
The Fair Work Commission (FWC) recently dealt with a case involving a general protections application lodged by a young worker who claimed he faced constructive dismissal.
He said that after a workplace incident, he asked to clarify his employment status, but the employer failed to respond within a reasonable period of time.
The decision shed light on the circumstances surrounding the worker's alleged termination and the factors considered by the FWC, including the worker’s lack of experience and age.
The worker started working with PFi Installations Pty Ltd on 26 June 2023. He claimed that he was dismissed on 8 September 2023 and that adverse action was taken against him.
The worker alleged that he was subjected to bullying, threats, and intimidation by his supervisor, Steve Nguyen, and that being asked to clean out the work refrigerator on 29 August 2023 was one example of this bullying.
The worker requested a full-body suit, mask, and gloves to clean the fridge, citing an allergy to mold as the reason for his refusal to clean it when offered only gloves and a mask.
However, no evidence was provided to support the worker's allergy claim. The worker stated that he refused to clean the fridge to stand up to bullying and intimidation.
On 5 September 2023, the worker messaged an HR representative, Clint Harbot, expressing his desire to discuss how he was treated in the workplace.
Harbot agreed to talk with the employer’s HR and inform the worker of how they would proceed. On 9 September 2023, the worker received a message from Emilio Barlin, the Group Operations Manager at PFi, asking for a call.
The worker later messaged Barlin, stating:
"Hi Emilio, As per our conversation today you informed me that I wasn't a good fit for PFI and that I should find work somewhere else – Does that mean I have been terminated from PFI?"
The worker did not receive a response within two weeks and subsequently lodged his general protections claim on 27 September 2023.
The FWC determined that the employment relationship did not end at the initiative of the employer. The worker's employment contract clearly stated that it was a casual arrangement and that during the probation period, the worker would receive advice, training, and guidance to help them become familiar with and competent in performing the required work.
The FWC found that Barlin's subsequent response on 14 September 2023, indicating that he would deal with the matter and contact the worker once he had all the facts together after an audit, did not suggest that the worker was dismissed.
The worker lodged the application exactly two weeks after this message, without receiving any further indication of dismissal from the employer.
The FWC also noted that the employer did not need to provide the worker with shifts, considering the nature of his casual employment. The worker's claim of dismissal was based on hearsay from others in his trade school, which was not substantiated by anyone from the school or PFi.
The FWC acknowledged that the worker could have made an anti-bullying application to the Commission if he felt bullied and could not return to the workplace.
However, the requests made to the worker were generally considered instructions of the things he needed to do, which would not be considered bullying but rather "reasonable management action."
The FWC further recognized that the worker was “new to the workforce” and that the employer could have been “more mindful” in managing potential tension in the workplace, given the worker's age, lack of work experience, and “sensitivities in communicating with him.”
Additionally, the FWC found no evidence indicating a constructive dismissal and noted that the worker could have waited for a response from Barlin to determine whether he had been dismissed or not. Thus, it ruled that there was no constructive dismissal in this case.
