How did the situation lead to an unfair dismissal claim?
The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a worker and their employer over accommodation issues and alleged unfair dismissal.
The case highlights issues that can arise in employment relationships, especially when remote work and employer-provided accommodation are involved.
It serves as a reminder for both employers and employees to maintain clear communication and follow proper procedures when disputes arise.
Accommodation trouble and absence from work
The dispute began when the worker, employed as a driver/operator, raised concerns about the cleanliness and safety of employer-provided accommodation.
The worker had been employed since September 2021 and worked on a three weeks on/one week off schedule, flying from Perth to Port Hedland for each work rotation.
On December 5, 2023, the worker arrived at the employer-provided shared accommodation after his shift and found it to be in poor condition, with issues including mould, dirt, and cockroaches.
The worker informed their supervisor, who arranged alternative accommodation for the following day.
The situation escalated on January 2, 2024, when the worker was informed via text message that they would be staying at the original accommodation again.
Upon landing in Port Hedland, the worker immediately arranged to fly back to Perth at their own expense, believing they had been instructed to do so by their manager.
Communication breakdown between parties
Throughout the dispute, there were several instances of miscommunication between the parties. The employer made attempts to clarify the situation and arrange for the worker's return, but these efforts were often met with limited response or engagement from the worker or their representatives.
On January 4, 2024, the employer issued a letter alleging misconduct due to unauthorised absence. The worker did not respond to this letter or subsequent attempts at contact. On January 8, the employer issued a written warning for failing to attend the scheduled shift on January 2.
"At best it might be argued that a lack of clarity in communication from [the employer] led [the worker] to presume that [the employer] had authorised his unilateral decision to return to Perth."
Repudiation vs. unauthorised absence
The worker eventually claimed that the employer had repudiated their employment contract, citing issues such as non-payment of wages and failure to address safety concerns.
The worker's representatives asserted that the worker had exercised their right to cease work under the Work Health and Safety Act 2020 (WA).
However, the employer maintained that the worker's absence was unauthorised and that they had made efforts to resolve the situation and facilitate the worker's return.
The employer had addressed the initial accommodation concerns in December and had secured alternative accommodation for the worker's planned return on January 30, 2024.
Is it unfair dismissal?
After considering the evidence, the FWC determined that the worker had not been unfairly dismissed. The Commission found that the termination of employment was at the worker's own initiative, not the employer's.
The FWC stated:
"Based on all the evidence before me I am not satisfied that [the employer] engaged in conduct which gave [the worker] no reasonable choice but to resign. Nor do I accept that judged objectively that [the employer] showed an intention not to bound by [the worker's] employment contract."
This finding was based on several factors, including the employer's attempts to arrange alternative accommodation and facilitate the worker's return to work.
The FWC also noted that the worker had not provided evidence to establish that the accommodation posed a risk to health and safety after December 6, 2023.
This case emphasises the importance of clear communication and following proper procedures in employment disputes. The FWC noted:
"[The worker's] concerns could have been continued to be pressed through a variety of mechanisms other than by ceasing his employment. For example, by reporting his concerns to WorkSafe, filing a section 739 application to resolve his dispute, filing a stop bulling order application, reporting his concerns to the Fair Work Ombudsman, making a claim for underpayments in the Industrial Magistrates Court."
The decision also highlights the need for employees to engage constructively in dispute resolution processes and not to assume that their actions are authorised without clear confirmation from their employer.
Finally, the FWC's conclusion serves as a reminder of the legal definition of dismissal:
"I therefore find that the termination of [the worker's] employment was at his own initiative and not at the initiative of his employer. I also find that he was not forced to resign because of conduct, or a course of conduct, engaged in by his employer."
