FWC orders compensation for worker dismissed after submitting resignation

FWC orders compensation for worker dismissed after submitting resignation

The Fair Work Commission has ruled that an employee, who submitted his resignation while agitated about matters at work, was unfairly dismissed but, due to his subsequent actions, only entitled to a small amount of money to cover his subsequent loss of earnings during the notice period.

The employee, ‘PB’, had worked for Turners Civil Pty Ltd (Turners) for almost 18 months and was regarded by his employer as a ‘fantastic employee’ who gave 110% every day. However, throughout his employment, PB had ongoing difficulties with one particular employee, ‘Mr J’, who he claimed was constantly wanting to fight him at work.

In September 2022, there was an incident at a worksite where he claimed that Mr J allegedly picked a fight with him. PB removed himself from the situation and relocated himself to another work site. He reported the incident to company supervisors but felt they did nothing to assist him.

On 2 December 2022, another incident occurred during which he claimed that Mr J approached him and said, ‘Come on, you old c*nt, let’s fight now’ and goaded him for several minutes. Immediately after, he contacted his manager, who urged him not to resign and assured him he would ‘sort this problem out’.

That night he had an argument with his partner and drank excessively. When he woke up, ‘not in the right frame of mind’, he sent the Turners’ General Manager an SMS stating, “Good morning I’m just informing you that I’m giving my notice of 2 weeks I’m done got f*ck wits wanting to fight me in yard”.

The next day he again sent an SMS to the General Manager stating, “Hi Penni just wondering if yous have a policy and procedures in place for incidents at work re fighting harassment if so can I receive a copy”.

The General Manager did not respond to either SMS.

PB did not attend work on Monday, 5 December 2022, claiming he feared for his safety. He rang his manager at 7:30 am, and the discussion became heated. At some point during the conversation, Mr B was terminated, and a follow-up SMS was sent to him by his manager at 7:41 am confirming Turners’ decision to summarily dismiss him.

As noted by Deputy President Michael Easton, Mr B then chose, unfortunately, to bombard his manager and General Manager with aggressive and confrontational SMS messages for several days. The Deputy President accepted evidence that Mr B had been under significant strain when he submitted his resignation, noting however that he did not attempt to retract it.

However, the Deputy President determined that Turners’ action in dismissing him without any discussion around the dispute between Mr B and Mr J was both harsh and unreasonable. He acknowledged that Mr B had acted properly on prior occasions by refusing to become physically involved with Mr J, de-escalating each situation, and then taking the proper course of action in reporting the incidents to Turners in the hope of preventing actual violence.

As the Deputy President noted,

“Mr (B’s) unsatisfactory behaviour after he was advised of his dismissal by SMS cannot and does not justify the dismissal. (However) Mr (B’s) behaviour meant that he could never return to his employment, but it does not prove that he should have been dismissed”.

The Deputy President determined that if Mr B had not been terminated, his employment would have ended in accordance with the two-week notice he gave on 3 December 2022.

He accordingly awarded Mr B two weeks’ pay, which amounted to $2,800 gross.

PB v Turners Civil Pty Ltd (U2022/12268) 18 April 2023

For queries about managing worker conflict, resignations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 340.0523

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