FWC quashes termination of warehouse employee

FWC quashes termination of warehouse employee

FWC quashes termination of warehouse employee

The Fair Work Commission has quashed the termination of an employee rejecting the employer’s claim that the separation was due to the employee resigning, nor were there sufficient grounds that had been brought to the employee’s attention to warrant dismissal.

TY commenced employment with SAL HR Services Pty Ltd (SAL) on 13 September 2021 as a casual warehouse store person and became a permanent full-time employee on 14 February 2022.

SAL operates warehouses in Sydney, Melbourne, Perth, Brisbane and Adelaide. TY worked at the Adelaide warehouse, the company’s smallest warehouse, employing only four employees.

Following an exchange with his immediate manager, Mr W, on 6 February 2023 and some further discussions involving the General Manager, TY left the workplace and filed an unfair dismissal application the following day.

SAL contended that TY had submitted his resignation and, therefore, the Commission had no jurisdiction to hear the case. They further argued that if they were found to have dismissed him from his employment, that would have been justified on the basis of his poor attendance, punctuality, and overall unsatisfactory performance.

In his determination, Deputy President Peter Hampton extensively reviewed the testimonies of various witnesses as well as viewing CCTV footage of the warehouse on TY’s final day. While acknowledging that both TY and Mr W had acted inappropriately and both expressed frustrations about various matters, he was not convinced that TY had resigned.

Rather, as the Deputy President noted, after the exchange,

“Mr (Y) then immediately went to his vehicle and left the premises. He correctly, in my view, understood that his employment had concluded at that point”.

Further, the Deputy President noted,

“I have found that during one of the discussions between the Applicant and Mr (W), the Applicant did advise to the effect that he had intended to quit his job. This was stated during a highly emotional discussion, and it could not be said that an actual resignation was provided. In any event, given the context, I do not consider it was reasonable for the Respondent to treat this as a resignation and seek later in the day to rely upon it”.

With regard to concerns SAL raised during the proceedings about TY, the Deputy President commented that their concerns were never considered serious enough to lead to any formal disciplinary action or a warning being issued.

As the Deputy President noted,

“I do not consider that these grounds provide a sound, defensible or well-founded reason for dismissal”.

The Deputy President also rejected the notion that the initial discussions on 6 February 2023 could be described as a ‘performance discussion’.

The Deputy President concluded that he was not satisfied there was a valid reason for the dismissal related to TY’s conduct or capacity.

He determined appropriate compensation in the amount of $4,402.90.

TY v SAL HR Services Pty Ltd (U2023/949)

For queries about unsatisfactory performance, resignation, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 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: 356.0723

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