The Fair Work Commission has upheld an employer’s jurisdictional objection finding an employee couldn’t proceed with his unfair dismissal claim as he voluntarily resigned. The employee claimed he was dismissed via his supervisor’s text asking him to clarify his employment status however Commissioner Hunt said “he could have easily responded in a return text, I have not resigned.”
The employee was an operator whose duties included crushing refuse. The business closed from Christmas and reopening on 9 January 2017. It did however have a skeleton staff working from 3 January 2017. The employee concerned was asked to return to work on 3 January 2017 and agreed to do so.
When the employee failed to return to work on 3 January 2017, his supervisor tried to call him. There was no answer so the supervisor sent a text message to the employee’s partner. His partner responded and said he was attending a medical appointment. The supervisor and employee’s partner then had a telephone conversation where the supervisor said it was “no drama.” Not sure whether the employee was due back on 3 or 9 January 2017, the employee’s partner understood the supervisor’s “no drama” to mean he wasn’t concerned and wouldn’t be expecting him at work until the following week.
As a result of what Commissioner Hunt referred to as a “miscommunication” between the supervisor and the employee’s partner, the employee did not return to work the following day. The supervisor again queried where he was. The operator returned to work on 5 January 2017. On 13 January 2017, he was issued with what the supervisor believed to be a second warning for failing to make contact prior to his shift and notify his employer of his absence. It came to light during evidence a “first warning” for the same conduct was placed on the employee’s file a year earlier however it was never issued to him.
Soon after the “second warning”, on 16 January 2017 the employee approached another supervisor stating he was planning on resigning. The employee also canvassed the prospect of being transferred to another site. The employee then left the work place. He subsequently failed to attend the workplace. When the employee’s immediate supervisor became aware of the conversation he sent the employee a text message which read:
“…I don’t understand why you didn’t see me this morning…You were given a written warning for failing to make contact prior to shift and it’s as simple [as] that. I will require a written resignation letter should you [to] be wished to be paid out your entitlements as you have not served a notice period….Could you please call to discuss”
The employee did not provide a written resignation nor did he call his supervisor or any other supervisor or manager. The employee maintained he was waiting for a telephone call concerning the proposed transfer.
The employee claimed he had either been dismissed or constructively dismissed as a result of the text message. Commissioner Hunt noted “the text message was sent by [the employee’s immediate supervisor] with a genuine belief, based on what [a fellow supervisor] had stated to him that [the employee] had resigned his employment. The text message invited [the employee] to put in writing his resignation. It did not solicit [the employee’s] resignation, as odd as it may have been to [the employee] to receive such a text message.”
Commissioner Hunt concluded the employee’s employment “came to an end following his failure to attend for work beyond 16 January 2017, and failure to communicate with his employer concerns he had following receipt of the text message from [his supervisor]. If [the employee] held a genuine belief that [another supervisor] was making inquiries as to a transfer of employment…it was incumbent upon [the employee] to communicate with [the employer] and inform [the employer] that he had challenges with [his supervisor] as his manager, and have those concerns investigated.
Noting the text message did not constitute a dismissal at the employer’s initiative the employee’s application was dismissed.
This case highlights how very easy it is for messages to be misinterpreted. Our experienced Workplace Relations Consultants can ensure you follow the right steps, from checking your procedure all the way to representing you at the Fair Work Commission. Attend our Performance Management on 6 November 2017 and our Responding to Fair Work Commission Claims on 14 November 2017 to ensure you are putting your best foot forward.
Written by Rachael Hammond
Fair Work Commission Decision (U2017/1209)
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