FWC: Is it unfair dismissal?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was unfairly dismissed from her job at a bingo centre.
The dispute centred around whether the worker was actually dismissed or had abandoned her employment, highlighting the complexities that can arise when employment relationships break down suddenly.
This case serves as a reminder for employers about the importance of clear communication when ending employment relationships.
It also emphasises how a worker's perception of being dismissed can be formed through both direct statements and subsequent employer conduct.
The worker began her employment as a casual "all-rounder" at a bingo centre in April 2024. She had previously been a regular player at the centre before being hired. Her role involved performing various duties including operating machines, catering, and bingo calling once fully trained.
Initially, she enjoyed her role and appreciated the support she received from her colleagues and management. However, her experience took a turn for the worse in her second week of employment when she had a confrontation with a coworker.
The worker claimed she was aggressively confronted about her belief that she could continue playing bingo despite being an employee.
This incident left the worker feeling uncomfortable in her job. She contacted the business owner's wife to raise concerns about how she had been treated and requested not to be rostered with the coworker in question.
Despite this request, she was subsequently scheduled to work with the same coworker in the kitchen, leading to further conflicts.
On 4 May 2024, the worker contacted the business owner and his wife by phone, extremely upset about events that had occurred during her shift. She claimed she had experienced a panic attack due to unfair treatment and lack of support from coworkers. The conversation that followed became the crux of the dispute about whether she was dismissed.
The worker claimed the business owner told her she would "see she was wrong" and that she was "the wrong person for the job" before abruptly ending the call. The business owner denied making these statements, saying he only told her to call back when she was calmer.
Following the phone call, the worker sent a text message to the business owner, which stated in part:
"As I was trying to clarify at the time without disrespecting you or sue was that you believed I was in the wrong and that I was very upset which I was and that tomorrow I would see I was wrong...... I'm devastated at following the chain of command in the workplace. Would leave to this outcome at unfair treatment and dismissal in the workplace."
This text message became a key piece of evidence in the case. The business owner couldn't explain why the worker referred to being dismissed if he hadn't used those words during their phone conversation.
The FWC found the worker's version of events more convincing, particularly given the content of her text message. The Commission concluded that the business owner had indeed told the worker she was wrong for the job and then abruptly ended the call, effectively communicating to her that she had been dismissed.
The FWC also considered the employer's actions following the phone call. The business owner did not respond to the worker's text message or attempt to clarify her employment status. Even when she failed to show up for her next scheduled shift on 7 May, no one from the company reached out to her.
The Commission noted:
"The [employer’] submission that the [worker] abandoned her employment is rejected."
This lack of follow-up reinforced the worker's belief that she had been dismissed. The FWC emphasised that the employer's conduct after the phone call was just as important as the call itself in determining whether a dismissal had occurred.
Ultimately, the FWC found that the worker had been dismissed within the meaning of the Fair Work Act. The Commission stated:
"The [employer] communicated to the [worker] that she was the wrong person for the job, and she took this as effecting her dismissal. She raised her dismissal in a follow-up text sent shortly after the telephone conversation on 4 May 2024 and no steps were taken by the [employer] to correct the [worker’s] belief that she had been dismissed."
The FWC further explained:
"The [worker] reasonably believed and accepted that the conduct of the [employer] ended her employment. It follows from the foregoing that the employment of the [worker] ended at the initiative of the [employer] within the meaning of s 386(1)(a) of the Act."
This decision highlights the importance of clear communication in employment relationships, especially when conflicts arise.
It also serves as a reminder that a dismissal can occur through a combination of words and subsequent conduct, even if an employer doesn't explicitly use the term "fired" or "dismissed."
