Fair Work criticises employer's actions amid stressful encounter
A worker recently filed a dismissal claim before the Fair Work Commission (FWC), alleging she resigned “in the heat of the moment” after a “threatening” conversation she had with her employer’s business partner.
The incident involved an unpaid debt that was allegedly connected to the employer’s transactions. The worker said she had to “defend herself” against three “intimidating” men at the workplace before police intervened.
Background of the case
The worker, Na Zhang, filed an application with the Fair Work Commission (FWC) concerning her alleged unjust dismissal from her employer, KY Plaster and Building Supplies Pty Ltd. The employer said the worker resigned voluntarily.
KY Plaster and Building Supplies Pty Ltd is owned and managed by a married couple, Kaiyuan Chen and Yanan Zhang. It operates in Bundoora, Victoria, supplying plaster, building materials, and equipment. The wife oversees day-to-day operations.
The worker, engaged on January 16, 2023, performed various tasks, including accountancy-related duties, general administration, and customer sales.
A dispute arose in March 2023 concerning a renovation contract with a builder recommended by the wife-owner, identified as “Mr. D,” who is a family friend of the employer.
Several incidents, including disputes over the renovation contract, improper conduct by Mr. D, and interventions by the employer, culminated in a threatening incident involving debt collectors at the workplace on June 26, 2023.
The 'threatening incident' at work
On the evening of 26 June 2023, the worker was working alone in the employer's warehouse, which is open for public sales. According to records, at approximately 9 p.m., Mr. D and two other men visited her at the worksite. There is video footage of this visit.
The video shows Mr. D speaking to the worker at the counter while the other two men walk around close by. The worker yelled at him "to the effect that she will not pay." At one point, one of the other men, reportedly tall and dressed in black, stands next to Mr. D and repeatedly says, “Just pay."
The following conversation occurred between the worker and the said man:
“Man: Listen to me.
Worker: Who are you?
Man: I’m from the debt collection company. Give me the money.
Worker: I won’t give it.
Man: I know where you live.
Worker: I’ve dealt with debt collection agencies before.
Man: Just wait and see.”
The worker yelled again at the men to leave. "It is clear the intention of the men is to intimidate the [worker] into paying Mr. D," the Commission noted. The worker called the police in front of them. The two men accompanying Mr. D then left.
After a while, the worker was escorted out of the warehouse by the police, and the employer-couple arrived and met with them.
The worker told them that "she could no longer work for the employer due to the threatening incident with Mr D. and that she was resigning." The worker said, "She did not feel safe."
The employer offered to move the worker to the day shift to address her safety concerns, but she declined and ultimately left the worksite.
'Heat of the moment resignation'
After reflecting on her decision, the worker said that her resignation was done "in the heat of the moment," and thus, it shouldn't have been accepted by the employer.
She told the FWC that "if an employee resigns under extreme pressure or in a moment of excitement, the employer should, after a reasonable cooling-off period, re-evaluate whether the employee has actually resigned."
Worker 'had presence of mind'
On the other hand, the employer argued against the worker’s "heat of the moment" claim and said she was not "scared" or "in an emotional state because of the threatening incident."
The employer pointed to the CCTV footage and said it showed that she had “presence of mind and control throughout the incident.”
It said, "the worker [was able to yell] at and say threatening things to Mr. D and the men" and that she "was able to discuss matters like handover and final pay arrangements with the [employer] on the night of the threatening incident." The employer further said that it offered her to be on the day shift, but the worker rejected their proposal and in doing so, she “voluntarily resigned.”
Termination or voluntary resignation?
“The threatening incident that occurred was extremely distressing to the [worker]. The actions of Mr. D and the two men who attended the worksite are reprehensible, and any reasonable person would be distressed by the situation,” the FWC said.
It said that the incident led to “emotional agitation and irrational decisions,” adding that she was in a “state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign.”
The FWC rejected the employer’s argument that she “was calm and in control throughout the threatening incident.” It said that the video evidence of [her] “yelling at Mr. D and repeatedly yelling at the men to leave is consistent with her being distressed and trying to defend herself.”
Did the worker intend to resign?
“The fact that the [worker] defended herself by yelling at Mr. D and the men, and had the state of mind to call the police, is a testament to her quick thinking, not evidence that she was not fearful and distressed.”
Thus, the Commission said that despite the worker's apparent resignation, it was found to have occurred in the "heat of the moment" following an intensely stressful situation involving a threat to her personal safety.
“[She] was not in a position to make a clear-headed decision. A reasonable person in the position of the [employer] would have understood that the [worker] did not intend to resign,” the FWC added.
Consequently, it said that the stressful circumstances rendered the resignation ineffective, and the employer's immediate acceptance of it was deemed unreasonable, amounting to a dismissal.
