FWC explores line between voluntary departure and forced termination in brief employment
The Fair Work Commission (FWC) recently dealt with a general protections application where a worker challenged the end of his employment after only four days.
He filed the application on 15 November 2024, alleging his employer, a logistics company, had dismissed him in contravention of Part 3-1 of the Fair Work Act 2009 (Cth).
The employer raised a jurisdictional objection on 19 November 2024, arguing that no dismissal had occurred. They claimed the worker had voluntarily resigned on 25 October 2024. This necessitated the FWC first determining whether a dismissal had taken place before any other claims could be considered.
The employment began on 21 October 2024 and ended four days later on 25 October 2024. Section 365 of the Fair Work Act 2009 sets out when the Commission can deal with such matters, as quoted in the decision:
"If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."
The parties attended a case management hearing on 20 December 2024, where they agreed to resolve the jurisdictional objection through an expedited process, scheduling a hearing for 24 December 2024.
The employer, operating with seven employees, provided evidence through their director that they wanted to retain the worker. They presented records showing the worker had accessed Seek.com.au multiple times using company computers between 21 and 25 October 2024.
According to the decision, when asked if he was willing to learn and take the role seriously, "[the worker] responded 'No'" and indicated he wanted to apply for automotive industry jobs instead of continuing in freight forwarding.
The FWC noted that while the worker acknowledged browsing job sites, this activity alone did not constitute resignation.
The worker testified that he had followed the company's training plan and wanted to learn about the freight forwarding industry.
During the meeting on 25 October 2024, he said the manager told him "there were two kinds of people that he would not hire being 'people who had just came to Australia from China and new graduates from university.'"
The worker, who had arrived in Australia in July, stated that the manager asked him "to find another job and to hand over his tasks to another employee."
He also testified that he "checked with [the manager] whether he should leave the company directly after handing over his tasks and [the manager] confirmed that he should."
The FWC noted that the manager involved in this conversation did not provide evidence to the Commission.
The Commission found significant that the manager who conducted the final conversation did not testify, and the director who represented the employer at the hearing was not present during the disputed meeting.
The FWC accepted the worker's evidence about the meeting, specifically that the manager had directed him to find another job and confirmed he should leave after handing over his tasks.
The Commission concluded: "I find that it was that the actions of [the employer], through [the manager], that brought the employment relationship to an end and that [the worker] was dismissed at [the employer's] initiative." This finding meant the jurisdictional objection failed, allowing the general protections application to proceed.
