Employer claims it was 'misunderstanding'
The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a worker who argued that he had been unfairly dismissed, while the employer maintained that the worker was still employed. This disagreement stemmed from a series of unclear communications following a workplace incident.
The case raised important questions about what constitutes a dismissal under Australian employment law. The worker claimed that he was told there was no more work for him and that he shouldn't come to the workplace.
However, the employer argued that these communications were misunderstood and that the employment relationship had never officially ended.
The case involved a motorcycle mechanic employed on a Temporary Skill Shortage (TSS) visa at a motorcycle sales and repair service in Colac, Victoria. The worker, originally from Japan, had been with the company since September 2022.
On 5 July 2024, a workplace incident occurred that resulted in the employer issuing a warning to the worker. Following this incident, the worker did not return to the workplace. The employer then sent several emails to the worker, which created uncertainty about the worker's employment status.
The main issue was whether the worker had been dismissed or if he remained employed, as the employer claimed. This distinction was important, as it determined whether the FWC could hear the worker's general protections application.
On 9 July 2024, the employer sent an email to the worker stating:
"Given that our industry has had a huge drop off in business lately, I no longer consider we have enough work to continue to employ [the worker]. And in light of the difficulties [the worker] has been having working alongside [their] co-workers at this business, I have made some enquiries as to what is involved in transferring to another Colac employer who already has staff employed on a TSS visa."
The next day, the employer sent another email informing the worker that he would not be attending work. Later communications involved discussions about the worker potentially resigning and the employer trying to arrange meetings.
On 14 July, the worker, believing he had been dismissed, asked for a "dismissal letter". However, the employer said that the worker was still employed, even though he wasn't allowed to return to work.
The worker was paid up until 26 July 2024 but received no pay after that date. During the hearing, the employer maintained that the worker was still employed.
The FWC had to decide whether the worker was "dismissed" as defined in Section 386 of the Fair Work Act 2009. This section states that a person has been dismissed if "the person's employment with his or her employer has been terminated on the employer's initiative."
"Whether or not there is a termination at the initiative of [the employer] depends on the facts and circumstances of the particular case. In this case, the facts support a conclusion that [the worker's] employment was terminated at the initiative of [the employer] on 9 July when [the worker] was told there was no longer any work for [them] to do."
The FWC viewed the employer's actions as the main factor leading to the end of the employment relationship. It noted that the employer's act of telling the worker about the lack of work counted as a dismissal, regardless of later communications.
The FWC ruled in favour of the worker, concluding that a dismissal had occurred. The decision stated:
"[The worker's] employment ended on 9 July 2024 when [the employer] advised [the worker] in clear terms that [the employer] no longer had any work for [the worker] to do and that 'transfer to another employer is possibly the best option...'. With respect to s.365(a) of the Act, [the worker] was dismissed within the meaning of that term in s.386 of the Act."
The FWC further explained:
"Having regard to all the factual circumstances, I am satisfied that [the worker's] employment was terminated at the initiative of [the employer] on 9 July 2024."
As a result of this decision, the FWC dismissed the employer's jurisdictional objection. The case will now proceed to a conference under Section 368 of the Fair Work Act, where the FWC will attempt to resolve the dispute between the parties.
This case shows the importance of clear communication in employment relationships, especially when discussing potential job losses or changes in employment status. It also highlights the FWC's approach to interpreting dismissals, focusing on the employer's actions and their impact on the employment relationship.
