Worker doesn't return after being disciplined, argues his supervisor fired him on the spot
The Fair Work Commission (FWC) recently dealt with a contested general protections application from a casual worker who claimed he was dismissed after raising workplace complaints.
The worker argued his employment was terminated unfairly when he questioned his supervisor about safety concerns. He claimed that raising these issues led directly to his dismissal, which would constitute adverse action under the Fair Work Act's general protections provisions.
The employer, however, painted a completely different picture of events, denying any dismissal took place.
The worker had been engaged as a casual scaffolder with a scaffolding company since July 2023, primarily working on shutdown projects across mine sites. His employment history included a previous termination in 2023 for failing a drug and alcohol test and a final written warning in March 2024 following an altercation with a colleague.
The events of November 7, 2024 were heavily disputed. The worker claimed his site supervisor dismissed him after he arrived late in a company vehicle he wasn't authorised to use. He alleged the dismissal was retaliation for raising complaints about personal protective equipment (PPE) to office staff instead of following the chain of command.
The employer denied dismissing the worker, stating he had merely been reprimanded for unauthorised vehicle use and for bypassing his supervisor with complaints. They maintained he was instructed to return the vehicle and come back to work in his personal car – instructions he never followed.
Evidence showed the worker had sent text messages to office staff about PPE issues up to November 4, 2024. Despite instructions on November 5 to raise concerns with his supervisor first, he sent additional messages to office staff on November 6.
November 7 was the final day of the worker's shift rotation, when workers were expected to pack up their hotel rooms. The worker claimed he missed the morning transport bus because he was packing his room, then took a company vehicle to the worksite without authorisation.
The site supervisor had recorded the incident in his work diary: "[The worker] came in late... Had discussion with [him] about bringing to site as it was not to be brought to sites. Sent [him] to drop back to motel and bring his own vehicle back to site. Also had a discussion about texting after hours. [He] never returned."
The Commissioner found significant inconsistencies in the worker's testimony. When questioned about end-of-rotation procedures, the worker initially claimed packing up his room was unusual, but later admitted this was standard practice when he didn't have permanent accommodation.
"I found [the worker's] evidence to be unreliable and contradictory both with his own submissions and his evidence. Further, when inconsistencies were brought to his attention, he claimed to not remember or when he had time to think, he provided self-serving explanations," the Commissioner noted.
In contrast, the supervisor's evidence was found to be more consistent. The Commissioner stated the supervisor's evidence "was not self-serving. He answered questions freely and whilst he did get confused a couple of times, I found his responses to be honest."
The operations manager and human resources administrator both testified that site supervisors lacked authority to terminate employment at the company. They stated terminations were formally conducted at the office, not at worksites – a procedure the worker should have been familiar with from his previous termination experience with the same employer.
The FWC established that supervisors at the company didn't have termination authority, a fact the worker himself acknowledged during cross-examination. This supported the employer's position that no dismissal had occurred during the worksite conversation.
"I am satisfied that [the supervisor] did not have the authority to terminate [the worker's] employment and [the worker] was aware of that. This was corroborated by evidence from [the HR administrator], [the supervisor] and [the operations manager] and further it was also acknowledged by [the worker] when cross examined," the Commissioner explained.
Evidence showed the worker was a casual employee who regularly experienced gaps between projects. Had he reported to the office as expected after his shift ended, he would likely have received information about his next assignment, consistent with his casual employment arrangements.
Section 386(1) of the Fair Work Act specifies that a person has been dismissed if their employment was terminated on the employer's initiative, or if they were forced to resign because of the employer's conduct.
After reviewing all evidence, the Commissioner concluded: "In order for me to find that [the worker] was dismissed by [the employer], I am required to find evidence that [the employer] has taken action with the intent to bring the relationship to an end or that has that probable result. For the reasons set out in the preceding paragraphs, I am unable to find such evidence before the Commission."
The Commissioner applied the established test that a dismissal occurs when "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
The application was dismissed for lack of jurisdiction, as the FWC determined the worker had abandoned his employment by failing to return to work after being disciplined, rather than being dismissed within the meaning of the Fair Work Act.
