FWC rules that employer initiated termination of employment

FWC rules that employer initiated termination of employment

The Fair Work Commission has ruled that an employee was dismissed by his employer rather than as a result of a resignation. The case highlights the need for clear communication between supervision, management and employees, particularly when there are issues afoot.

The employee, ‘JG’, commenced employment with Port City Autos Pty Ltd as an Automotive Technician on 1 July 2022, reporting to ‘Mr S’, working Monday to Friday each week.

He had two days of pre-approved annual leave for 17 and 18 October 2022 but began to feel unwell on 13 October 2022. Although he commenced work the following day, his condition deteriorated, and he required assistance from Mr S to complete his shift. He considered that his supervisor was now aware of his physical state.

On Sunday afternoon, he sent a text message to his supervisor stating, “Hey bossman, did you approve me annual leave for tomorrow???”. He received a response stating, “Yes mate all good. Only just looked at phone”.

His situation worsened over his leave days, and on the subsequent day, 19 October 2022, he was still unwell. Despite having a consultation with his GP, he failed to notify his employer, nor did they attempt to contact him enquiring as to his whereabouts.

On 20 October 2022, he was diagnosed with tonsilitis, returned a positive COVID-19 result, and was issued a medical certificate covering his absence until 21 October. He again failed to notify his supervisor of his absence, nor did they again try to contact him.

On 21 October 2022, he telephoned the Service Department and briefly discussed his absences and his intention to ring the following Monday with the likelihood of a return to work.

That night he received a text message from Mr S reading, “Your toolbox is on islander road”. He replied to his supervisor, explaining his absence, but it was not a pleasant exchange.

Mr S’s final message was, “Not my problem. Your problem. Sick of you and being down rite rude towards me”.

‘JG’ sent a further series of texts to Mr S the following week but received no response. He returned to the workshop to retrieve his toolbox. In evidence before Commissioner Hunt, it emerged that Mr S had failed to alert management or HR as to his knowledge of JG’s condition and absences, nor that he had sent the email about the toolbox on the Sunday night.

In Commissioner Hunt’s view,

“Mr (S’s) conduct was disgraceful. He then hid his conduct from others within the business, and it took Mr (G) to have to chase up payroll to request his termination payments”.

In determining that JG was effectively dismissed by his employer, Commissioner Hunt noted,

“I am satisfied that Mr (S’s) action in sending the text messages to Mr (G) on 21 October 2022 directly and consequentially resulted in the termination of Mr (G’s) relationship with the Respondent. I am satisfied that if Mr (S) had not taken that action, Mr (G) would have remained employed. I am satisfied that Mr (S’s) action intended to bring the employment relationship to an end. His words within the text message to Mr (G) were unequivocal and spiteful”.

The matter will be relisted for the parties to consider conciliation and, failing that, arbitration.

JG v Port City Autos Pty Ltd (C2022/7486) 12 May 2023

For queries about absent employees, ongoing communications, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 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: 345.0523

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