The difficulties of advising about unfair dismissals

In what at first glance appears to be an odd decision, a senior member of the Fair Work Commission has held that a heat of the moment resignation constituted a dismissal for the purposes of the Commission unfair dismissal jurisdiction EVEN THOUGH

(a) The Deputy President found that the employee had orally resigned;

(b) the dismissal was not at the initiative of the employer; and

(c) the employee “did not move with sufficient urgency or decisiveness after his resignation to make the employer’s acceptance of it unreasonable.”
The Deputy President’s reasoning appears to be that the resignation was “forced” because of the conduct of the employer ( see sub-sec 386(1)(s), Fair Work Act 2009) because the employee’s resignation was “avoidable” for a number of reasons including that the employer had failed to provide the employee with an opportunity to be accompanied by a support person to the critical meaning even though sec 387 of the Act speaks of “any unreasonable refusal by the employer to allow the presence of a support person.

You can form your own opinion of the reasoning from this passage from the decision.

“In this matter the form of the termination of employment in both fact and at law is at issue. The fact of dismissal is disputed by the employer but asserted by the employee. The fact of resignation disputed by the employee but asserted by the employer.

 On Mr Wederay’s case, there is no single incident that constituted a dismissal in fact or at law, rather a series of events on 19 April and following which is said to constitute termination at the initiative of the employer within the meaning of section 386(1)(a). Mr Wederay’s primary contention was not prosecuted on the basis of constructive dismissal, as he disputes the employer’s assertion that he resigned. However, as a fall-back position and in the alternative, in closing submissions his counsel contended that if the Commission found that he did in fact resign then it is contended that the conduct of the employer on 19 April and in the days following enlivened the constructive dismissal provisions of section 386(1)(b).

I have not found that Mr Wederay was dismissed at the initiative of the employer. I have found that Mr Wederay resigned, orally. I have found that his resignation was made in the heat of the moment. I have found that Mr Wederay did not move with sufficient urgency or decisiveness after his resignation to make the employer’s acceptance of it unreasonable. However, I have found that the employer materially contributed, by act and by omission, to the circumstances giving rise to the resignation being made in the heat of the moment. Those circumstances are:

  • The failure to provide Mr Wederay advance notice of the 19 April disciplinary meeting;
  • The rushed nature of the meeting;
  • The detached attitude of Ms Crook during the meeting towards the final warning she was issuing;
  • Ms Crook’s insistence during the meeting that Mr Wederay sign the warning;
  • The failure to provide Mr Wederay a realistic opportunity to object to the warning; and
  • The failure to provide Mr Wederay an opportunity to be accompanied at the meeting by a support person of his choice.

I am satisfied that the above factors, in combination, directly and materially resulted in Mr Wederay becoming agitated and his verbal resignation being made in the heat of the moment. Individually and in combination, each of these failures was avoidable. In combination, they constitute a course of conduct that resulted in Mr Wederay’s verbal resignation being forced within the meaning of section 386(1)(b) of the FW Act.

As Mr Wederay’s resignation was a forced resignation, he was dismissed within the meaning of the FW Act.

I now turn to consider whether Mr Wederay’s dismissal was harsh, unjust or unreasonable within the meaning of section 397 of the FW Act………………………………..”

And wait for it! The deputy President then wrote

“There was no valid reason for dismissal. By 3 April, Mr Wederay’s conduct had reached a point of warranting final disciplinary action short of dismissal. Had the employer not failed to provide Mr Wederay ‘a fair go all round’ on 3 April and in the days that followed, continuing employment on a final written warning would have been the outcome. Ms Crook’s evidence was clear on that point. 65

As dismissal was not intended let alone warranted, I find that the dismissal was harsh, unjust or unreasonable.”

Make of that what you will!

 

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Wederay v Airline Cleaning Services Pty Ltd T/A Cabin Services Australia (2017) FWC 4603 delivered  6 September 2017 per Anderson DP