Employer argues prospective employers kept calling for reference
The Fair Work Commission (FWC) recently dealt with a worker who claimed he was fired because he sought other employment, and his prospective employers were calling his workplace.
The employer said that it believed that the worker no longer had any intention to stay with the company but later acknowledged that there might have been a “misunderstanding” between the parties.
Dean Arecco served as a restoration technician under the employment of Revive Disaster Recovery Pty Ltd. Initially, he worked for Revive for several years until March 2018 and then resumed his employment from 11 July 2018, until 10 July 2023.
On 30 July 2023, he timely filed for an unfair dismissal remedy but the employer argued Arecco was not terminated.
According to records, Arecco and his partner, Jessica Francis, are anticipating the arrival of their third child. In preparation for the baby's arrival, Arecco started a job search to secure higher-paying employment due to increased living costs and Francis' upcoming parental leave.
Due to Arecco's job search, Nathaniel Sierra, his supervisor and Revive Project Manager, and Darren Wilson, the Director of Revive, began receiving inquiries from potential employers.
Seeking alternative employment
On 10 July 2023, Wilson talked to Sierra over the phone about Arecco's absence for several weeks. They also observed that he had not been interacting with colleagues, and had been actively seeking alternative employment.
Wilson reportedly suggested that Sierra should inquire if Arecco wished to leave and offered him a two-week notice period to seek employment elsewhere. Wilson then said that they could then concentrate on recruiting a replacement.
A conversation between Sierra and Arecco followed, which discussed the following:
Sierra: “[We] have been receiving calls about you looking for other work. If you just want to move forward from here, we can also move forward and start the rehiring process. We will give you 2 weeks and you can focus on looking for other work.”
Arecco: “Yeah okay”.
Sierra: “Have you got anything lined up?”
Arecco: “No, not yet, but I’m hopeful about a job at Veolia.”
Sierra: “Good on you.”
Arecco: “Do you want me to work today?”
Sierra: “No need. If you can leave your phone and any other stuff that belongs to the business on site. You have to get all your data off and leave your phone as it is so another employee can use it.”
Shortly after this meeting, Sierra left the warehouse to attend a job, believing that Arecco was still on the premises, retrieving his data from the phone and laptop. However, when another company executive informed them that Arecco had taken the phone, Sierra sent Arecco a message, confirming the list of work equipment to be returned.
Employer tries to retrieve work phone and equipment
At that moment, Arecco was on his way to Wollongong to acquire a new phone, as he had taken the work phone with him, which contained his driver's license information. He needed this documentation to obtain a new phone and to transfer data to the new device before returning the old one to Revive.
Although Arecco said he had arranged this with Sierra in advance, the employer rejected this. Instead, the latter said they were surprised when they discovered that Arecco had left with the work phone.
Subsequently, Wilson called Arecco and informed him that he should not have taken the phone with him. Arecco explained the reason for taking the phone, and in response, Wilson stated, "Have the phone back by 10 am or watch out."
Arecco did not interpret this as a serious threat and replied, "Okay, no worries." He procured a new phone and returned to Revive's Unanderra warehouse. During his visit, he sent photos from his phone, transferred data, reset the work phone, returned it, and left.
Shortly after, Arecco's partner wrote an email on behalf of the worker, which said he understood that his employment was terminated effectively. The email further requested payment of his entitlements, an employment separation certificate, and all documents related to his employment with the company.
Wilson responded to the email, clarifying that Arecco was never dismissed from his employment and that it was not their intention to dismiss him.
Instead, they had offered Arecco a two-week notice period to facilitate his job search, which he had mutually agreed upon with Sierra.
Wilson acknowledged the potential for misunderstanding and assured that Arecco's entitlements would be paid, along with the issuance of a separation certificate, which was subsequently executed by Revive around August.
Was the worker dismissed?
In its decision, the FWC said that it was “unsurprising from the exchange between [the parties] that Arecco understood he was being dismissed.”
“The emphasis of the exchange was on Arecco leaving, straight away, and leaving the company’s belongings behind. There was very little emphasis on his staying with the business,” it added.
“Sierra’s communication to Arecco lacked the precision necessary to make clear to [him] that he had a choice about the matter. What started as an option (“If you just want to move forward...) quickly became what sounded like a decision, using words that conveyed a certainty of outcome. When Arecco responded: “Yeah okay”, Sierra assumed his agreement to leave, when it was no more than his acceptance of what he understood to be dismissal.”
“[The employer] did not then seek to correct or clarify what it accepted then (and still accepts) might have been a misunderstanding,” it said.
Thus, the FWC said the worker’s termination was initiated by the employer.
