FWC decides if employer's angry response amounts to dismissal
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed to have been dismissed from his employment.
On the other hand, the employer disputed the worker's assertion, arguing that the worker had not been dismissed.
The case revolved around the central question of whether the worker's employment had been terminated at the employer's initiative or if the worker had voluntarily resigned.
According to the employer's evidence, the worker arrived late to work and had a heated exchange with the warehouse manager.
The worker allegedly became angry, raised his voice, and swore at the warehouse manager. In response, the warehouse manager asked the worker to leave the workplace, stating, "I said to the [worker], 'You know what man, just leave, I don't want you here if you are going to be like this'."
In his witness statement, the warehouse manager clarified that his intention was not to dismiss the worker but rather to defuse the situation and give the worker a chance to calm down before returning to work.
After the incident, the HR manager contacted the worker by telephone. During the call, the worker expressed concerns about feeling unsafe at work and made allegations against the warehouse manager. However, when pressed for details, the worker was unable to provide any specific incidents to support his claims.
"The [worker] sounded upset and 'worked up' but could not provide any detail to back up these allegations. The more he talked the more outrageous and worked up his allegations became, saying 'You don't know what goes on out there'," the HR manager said in her evidence.
At the end of the phone call, the worker indicated that he did not feel safe returning to work at the employer's company.
The HR manager asked the worker to send an email that afternoon putting his resignation in writing, to which the worker reportedly responded, "Okay. No worries."
The key issue for the FWC to determine was whether the employer's actions caused the termination of the worker's employment.
While the warehouse manager's actions, viewed in isolation, could be construed as leading to the termination, the FWC emphasised the importance of considering all the circumstances, including the conduct of both the employer and the worker.
"Having regard to all the circumstances. I am not satisfied that the [worker] was terminated at the initiative of the employer. While the actions of [the warehouse manager] viewed in isolation, could be found to be action that brought the employment relationship to an end, all of the circumstances must be considered," the FWC stated in its decision.
The FWC noted that there was nothing in the worker's conversation with the HR manager to suggest he thought he had been dismissed.
The HR manager made it clear that she wanted the worker to return, but the worker indicated he would not because he felt unsafe. However, the FWC found no evidence to support the worker's claims of an unsafe workplace.
"There is no evidence to support a finding that [the warehouse manager] was a 'threat' to the [worker]. In all the circumstances, I am satisfied that the employment relationship ended when the [worker] advised the HR manager that he would not return to the workplace," the FWC concluded.
Ultimately, the FWC upheld the employer's jurisdictional objection, determining that the worker's employment ended on the date when he advised the HR manager that he did not intend to return to the workplace.
"The jurisdictional objection is upheld, and the application will be dismissed," the decision said.
