FWC confirms: Raising workload concerns doesn't justify termination
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a live-in housekeeper who performed cooking and cleaning duties at an employer's apartment. The worker claimed she was unfairly dismissed after raising concerns about her workload and feeling underappreciated, while the employer maintained she had voluntarily resigned.
At the centre of the dispute was a crucial meeting between the parties, where dramatically different accounts were given about what was actually said.
The worker claimed the employer was aggressive and dismissed her, while the employer insisted she had resigned when she couldn't agree to his terms.
The case raised significant questions about what constitutes a valid resignation versus a dismissal, and what employers can and cannot do when ending employment relationships.
The worker began employment with the company on 15 January 2024, performing cooking and cleaning duties at the apartment in The Rocks, Sydney. Throughout this period, she lived at the apartment while working.
The dispute began when the employer (the sole director and owner of the company) raised concerns about a stained carpet not being cleaned, which triggered an emotional response from the worker who had been feeling overworked.
Text messages exchanged after this initial incident showed the worker professionally raising concerns about her workload, with the employer suggesting she take time off. When she returned to work, he complained about overcooked eggs and the "silent treatment."
During the hearing, the employer remarkably stated he believed his housekeeper had "turned into a wife" and questioned "what right [did the worker] have to be doing this?"
The situation escalated to a meeting on 17 November 2024. According to the employer's evidence, he told her: "You need to agree with me 100% of the time. Can you agree with me?" When she replied she couldn't, he stated:
"If you can't agree with me, you can't work for me. If you are not going to agree with me, you are resigning." After this meeting, the employer sent a text message attempting to document her resignation, which she immediately disputed.
The Commissioner had to determine whether the worker was dismissed under section 386 of the Fair Work Act 2009, or whether she had voluntarily resigned. This determination was crucial as a person is not protected from unfair dismissal unless they have been "dismissed" within the meaning of the Act.
In examining what happened, the Commissioner applied principles from previous cases about distinguishing between voluntary resignation and dismissal at the employer's initiative.
The Commissioner found: "Even if I accept [the employer's] evidence about this conversation, I do not consider it constitutes [the worker] communicating a legally effective resignation. I consider the conversation would constitute [the employer] deciding at the initiative of [the company] to terminate [the worker's] employment."
The evidence that most strongly supported the worker's version was the email exchange immediately after the meeting. The employer had written: "I understand that you do not wish to continue with the role due to the overwhelming nature of the job."
The worker promptly responded: "At no time did I resign. I simply expressed my concerns about the workload being beyond what I could reasonably handle and noted that I lacked the necessary training to meet all the expectations of the role."
After determining a dismissal had occurred, the Commissioner assessed whether it was unfair by examining the criteria in section 387 of the Fair Work Act, including whether there was a valid reason related to the employee's capacity or conduct.
The Commissioner found no valid reason for the dismissal, stating: "I find that [the company] decided to dismiss [the worker] because she had raised concerns about her workload and due to her dispute with [the employer] on 13 and 17 November 2024. I do not consider this constitutes a valid reason for dismissal related to [the worker's] conduct."
The Commissioner also found the worker was not notified of any reason for dismissal before it occurred and was not given an opportunity to respond. Despite acknowledging the company's small size and lack of human resources expertise as mitigating factors, the Commissioner determined the dismissal was "unjust and unreasonable."
In determining the appropriate remedy, the Commissioner noted that reinstatement was not sought by the worker and would be inappropriate as the relationship had "irretrievably broken down." The Commissioner then had to calculate compensation based on how long the worker would likely have remained employed if not unfairly dismissed.
Given the deteriorating relationship, the Commissioner found: "Taking all the evidence into account, I find [the worker] would likely have remained employed with [the company] for a further four weeks if she had not been unfairly dismissed." This finding was based on evidence that the relationship was already under strain before the dismissal occurred.
Consequently, the Commissioner awarded four weeks' pay ($3,840) plus superannuation. The Commissioner stated: "I am satisfied that the level of compensation is appropriate," noting this represented "the minimum appropriate amount that [the worker] should receive."
The FWC established that employers cannot characterise a termination as a resignation when the worker immediately disputes this characterisation. The case also adds that raising concerns about workload does not constitute misconduct justifying dismissal.
