Worker's behavior before and after meeting prove critical in FWC decision
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a 66-year-old estimator/manager whose employment ended after eight years of service.
The worker claimed he was made redundant without proper consultation, while the employer maintained he voluntarily resigned after refusing to perform certain duties.
The worker had been employed by a family-run automotive repair business until May 2024. He and the managing director had a 40-year personal relationship, sharing interests in restoring vehicles and even holidaying together.
Notably, the worker had resigned from the company multiple times throughout his employment, always returning later.
During a period of annual leave in early 2024, the worker visited the workplace several times and began removing personal items and car parts he had stored at the premises. When he returned to work on April 8, a crucial meeting took place that would become the focal point of the dispute.
Two completely different accounts of this meeting were presented to the FWC. The worker claimed the managing director told him operational changes meant his position was redundant. The managing director's version was that he asked the worker to focus on ordering parts, to which the worker allegedly responded, "I don't want to fucking do that. I'll finish up then," effectively resigning.
With no witnesses present at this meeting, the FWC examined surrounding evidence. The company's bookkeeper testified that the managing director called her about an hour after the meeting to inform her of the worker's resignation. A car detailer also testified that she had observed the worker removing car parts during his leave period.
A farewell barbecue was held for the worker the day after the meeting, where both witnesses testified that neither the worker nor the managing director mentioned any redundancy.
The FWC identified several inconsistencies in the worker's testimony. His explanations about removing belongings during leave changed between his written statement and oral testimony.
During his notice period, the worker approached the bookkeeper to inquire about redundancy pay but denied having this conversation when questioned, saying he "didn't actually like her 100 percent."
When questioned about the alleged restructuring, the worker admitted he had no knowledge of any downturn in work from either insurance company, significantly undermining his redundancy claim.
The FWC also found it implausible that the managing director would claim it was "illegal" to discuss a redundancy, particularly as both had previously conducted redundancy meetings with employees during the COVID period.
Another telling contradiction emerged when the worker initially stated in his witness statement that he was told he "had to work an extra week" due to the managing director's illness. However, in oral testimony, he admitted, "I offered to work an extra week because [the managing director] was going into Knox hospital."
The Commissioner stated: "I find it unconvincing that [the worker] would take no further action or not make any further inquiries for the five weeks he remained employed if he had been told that he was being made redundant."
After weighing all evidence, the FWC concluded: "[The worker's] resignation was pre-planned during his period of leave," and "It is my conclusion that the resignation was not done in heat of the moment; instead [the worker] gave prior consideration and simply no longer wanted to perform the work."
The application was dismissed, with the finding that the worker "was not dismissed within the meaning of section 385 of the Act."
