In unfair dismissal case, FWC determines if it was true resignation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed that she was unfairly dismissed from her employment with a logistics company.
The case before the FWC involved a heated altercation between the worker and her supervisor, which led to the worker “leaving the office in tears.”
The employer claimed that the worker had resigned during this incident, while the worker maintained that she had not offered her resignation either verbally or in writing.
The FWC was tasked with determining whether the worker had been dismissed and, if so, whether the dismissal was harsh, unjust or unreasonable.
Argument at workplace
The worker started her employment with the logistics company on 6 October 2020 as a full-time customer service & logistics co-ordinator.
According to records, on or about Monday 28 August 2023, the worker met with the state manager and informed him that she had an argument with her supervisor and that she “was going home and was not sure if she will be coming back.”
Following this discussion, the state manager spoke to the supervisor, who confirmed that there had been an argument between her and the worker.
The supervisor stated that before leaving the office, the worker said, "I have had enough, and I quit.” Later that day, the worker lodged a formal complaint against the supervisor, which prompted the state manager to undertake a thorough investigation of the matter.
Employer claims resignation after altercation
The employer submitted that the worker had resigned during the altercation with her supervisor and that, in view of her behaviour (which, in their view, amounted to serious misconduct), they accepted her resignation.
The employer maintained that the worker was not dismissed; rather, she resigned and that her resignation was not forced as there were plenty of other options available to her apart from telling her supervisor that "she quits."
The employer relied on statements from witnesses who were present during the altercation, which stated that the worker had said "I quit" before leaving the office.
The employer claimed that they had merely accepted the worker's resignation after having conducted a thorough investigation into the incident that gave rise to the resignation.
Worker disputes claim of resignation
The worker maintained that she did not offer her resignation from her role either verbally or in writing. While she did not dispute that she was involved in a heated discussion with her supervisor, she submitted that the supervisor made antagonising and humiliating statements which caused their discussion to become heated, leading to the worker “leaving the office in tears.”
The worker claimed that after talking to the state manager, she left the workplace to see her doctor and later provided a medical certificate indicating that she would not be fit for duty until 11 September 2023. She also lodged a formal complaint about the altercation on the same day.
The worker asserted that she had been denied procedural fairness and natural justice as she had no access to view, understand or question the statements made by employees who witnessed the altercation, which she claimed were relied upon by the employer as the basis for her termination.
Was it dismissal or resignation?
The FWC noted that determining the matter turned in large part on exactly what was said and done during the altercation between the worker and her supervisor on 28 August 2023.
The FWC observed that there was conflicting evidence as to what was said during the altercation, and found it necessary to prefer the evidence of one witness over another.
The FWC also noted some inconsistencies between the written statement provided by one of the witnesses and her oral evidence.
“[The worker] had no intention of resigning. It is likely that [she] did not say the words ‘I quit’, however, [even if] such a statement would have been made, [it was] in the heat of the moment and not intended, noting that [she] had been involved in a heated exchange,” the FWC said.
After weighing several factors, the FWC found that the worker had not resigned from her employment, but rather that her employment had been terminated at the initiative of the employer.
The FWC was satisfied that the worker was protected from unfair dismissal at the time of being dismissed and that the dismissal was harsh, unjust or unreasonable.
In reaching this conclusion, the FWC placed significant weight on the evidence of the worker, who maintained that she had not offered her resignation either verbally or in writing.
The FWC also found that the employer had not afforded the worker procedural fairness or natural justice, as she had no access to view, understand or question the statements made by employees who witnessed the altercation. Consequently, the FWC ordered the employer to pay her compensation.
