Manager alleges 'abuse' from worker while discussing 'emotional state'
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal lodged by a worker against their employer, a barber and hairdressing company.
The worker, who was engaged as a casual barber, claimed that adverse action was taken against her under s.340 of the Fair Work Act 2009 (Cth) (the Act). She said that she suffered “on-the-spot” termination in a meeting with management to discuss her “emotional state.”
In this case, the FWC was tasked with determining whether the worker's employment had been terminated at the initiative of the employer or if the worker had voluntarily resigned from her position.
Background and context
The worker began her employment with the barber and hairdressing company on or around 30 October 2023. At the time her employment came to an end on 22 January 2024, she was engaged as a casual barber.
The worker had informed the employer that she was without a home and might require time off work to organise accommodation at the start of her employment. The employer granted the worker two days off to arrange her living situation.
Upon returning to work after taking time off to move, the worker had a conversation with the assistant manager that deteriorated, causing the worker to leave the premises.
The area manager was called to the site to address the situation. When the worker returned, concerns were raised about her “emotional state,” and the area manager requested a private meeting to assess the worker's well-being.
According to records, during this meeting, “the worker allegedly abused the area manager and was subsequently stood down.”
The worker said that she interpreted the events of that day as a termination of her employment and proceeded to return her work keys and uniforms to the employer.
In response to the worker's actions, the area manager removed several of the worker's upcoming shifts from the digital roster.
The parties' submissions
The worker contended that she was terminated “on the spot” and believed that the termination was discriminatory against her on the basis of her religion and disabilities.
She claimed that she had religious tattoos, which she covered with a hat, and that the area manager had criticised her for "jiggling [her] leg during haircuts," which she believed was discriminatory against her ADHD.
On the other hand, the employer argued that the worker had not been dismissed and had instead abandoned her employment.
They maintained that the worker remained on the payroll and scheduling program with a forwarding shift and that they only withdrew the worker's scheduled shifts after she returned her keys and work uniforms.
Is it on-the-spot dismissal?
The FWC carefully examined the circumstances surrounding the worker's alleged dismissal, taking into account the conduct of both the employer and the worker.
The Commission found that the worker had been told to go home for the day after behaving in an aggressive and rude manner towards the area manager.
The decision noted that "the [employer’s] evidence was that the [worker] was very distressed that morning and after trying to calm her down, told her to go home for the day."
The FWC emphasised that determining whether the termination was at the initiative of the employer required an assessment of what was said and the circumstances surrounding the incident.
The FWC accepted the evidence provided by the employer's area manager, stating, "Taking into account the evidence of the staff at the site, I prefer [the area manager’s] view that she did say those words 'for the day' to the [worker] when she was asked to go home. It is these three critical words, in the context of the immediate situation as well as the events leading up to it, that determine the termination was not initiated by the employer."
The decision reminded employers of the importance of carefully examining the circumstances surrounding the end of an employment relationship and the need for clear communication.
Ultimately, the FWC concluded that the worker's employment was not terminated at the employer's initiative.
The decision stated, "On the basis of all of the uncontested evidence before me and the weight that can be placed on that evidence in circumstances where the [worker] did not attend her hearing to put her case or to be cross-examined or to contest the [employer's] case, I find that the employment came to an end as a result of the [worker] handing back her keys and uniforms after being told to go home for the day."
As a result of this finding, the FWC determined that it did not have jurisdiction to deal with the worker's application, and the application was dismissed.
