News 14 March 2019

Unreasonable fear for life does not amount to a forced resignation

A manufacturing company has successfully objected to an unfair dismissal claim filed after accepting a workers resignation. The worker alleged a threat against their life and the lack of appropriate action by the company left them no choice but to resign. The company argued the worker chose to freely resign from their employment.

Overview of the facts

The worker was employed as a carpenter for over three years before an exchange occurred with the General Manager of Production (“General Manager”). On the 21st of September 2018, the General Manager heard loud laughter coming from the lunchroom which he felt was directed towards him. As the worker left the lunchroom, walking towards their car, the General Manager approached. Standing close to their face, the General Manager softly said “I show where your liver is” pointing to the worker’s abdomen.

Fearing for their personal safety, the worker filed a complaint with the Office Manager. An investigation was immediately started and the General Manager was stood down. During follow up conversations, the worker expressed their intention to resign and was told it would be his choice. The worker submitted a resignation with the company and their employment ended. They then lodged an unfair dismissal claim, alleging they were forced to resign due to the threat to their life.

The decision

In making a decision as to whether the worker was constructively dismissed, the Fair Work Commission (“the Commission”) considered a number of points:

  • Whether a reasonable person would fear for their life: The Commission found it difficult to accept the statement made by the General Manager would have caused a reasonable person to genuinely fear for their personal safety.
  • Whether the business took the complaint seriously: The Commission found the business acted swiftly when hearing the worker’s concerns and was speaking to all involved parties about a resolution when the resignation was tendered.
  • Whether the General Manager should have been immediately dismissed: The worker contended immediate dismissal was necessary given the threat to his life. The Commission rejected this stating “to do so would have been patently unfair” and the business’s response was in line with “due process” and was a “proportionate approach to a disciplinary sanction”
  • The sequence of events: The worker tended their resignation less than 2 working days after submitting the complaint to the office manager.

Given the above points, the Commission therefore found there to be “no basis that the employer had any intention of bringing the employment to an end” and dismissed the application.

Lessons for Businesses

Where an employer receives a complaint or becomes aware of an incident, they may also receive a demand for it to be formally investigated. Under workplace laws, where an employer “has knowledge” of a risk to health and safety or possible breach of equal opportunity laws, it has an obligation to take “reasonable steps” to satisfy itself as to what has, or has not, happened. Reasonable steps may include informal enquiries, but in some cases, a full and formal investigation will be appropriate

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett, Workplace Relations Advice Line Advisor

Fair Work Commission Decision Nicholas Tondorf v Impresa House Pty Ltd [2019] FWC 1164

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