Work dispute escalates when manager labels employee 'troublemaker' in heated call
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who claimed he was forced to resign after a heated workplace dispute led to him being called a "troublemaker" and a "cancer to the business" by management.
The worker argued that his employer misled him about his post-employment obligations during termination negotiations, which induced him to accept the end of his employment.
He claimed this amounted to a forced resignation, making it dismissal for the purposes of unfair dismissal laws under the Fair Work Act 2009.
However, the employer maintained that the employment ended by mutual agreement after both parties recognised their working relationship had become untenable.
The worker had been employed as a licensed real estate salesman from 15 April 2020 until 7 February 2025.
In January 2025, a dispute arose between the parties about the calculation of commission payments for the period ending in December 2024.
Despite ongoing dialogue back and forth between them, the dispute was not resolved, creating mounting tension in the workplace.
The situation escalated on 3 February 2025 when the worker received a phone call from a company director. The discussion quickly became heated, with the director telling the worker he should resign and calling him a troublemaker and a "cancer to the business".
The worker refused to resign and ended the call by saying "Make me" - words that were overheard by a colleague after the worker put his phone on speaker as the conversation progressed.
The worker came away from the phone call thinking that his relationship with the director was no longer tenable.
This view was reinforced by his discovery that afternoon that the employer had locked him out of access to AgentBox, a customer database system containing the information needed by the worker to effectively perform his role.
On 4 February 2025, the worker sought advice from the Fair Work Ombudsman before taking any further action.
He then wrote to the employer "with a heavy heart and a clear request for resolution", seeking clarity on his employment status and to ensure the matter was handled fairly and legally.
The employer responded on 5 February 2025 by requesting the worker attend a "proposed termination meeting" on 6 February 2025.
The email attached a letter containing allegations of misconduct and underperformance, stating that the employer was considering the termination of his employment. The meeting was subsequently deferred until 7 February 2025 by agreement between the parties.
On the evening of 6 February 2025, the worker was offered employment by a competitor real estate agency. According to the decision, the timing of these events proved significant, as the worker's options influenced his approach to the termination meeting.
The FWC noted that the employer's concerns about conduct and performance "correlate in time with the commission payment dispute", suggesting a connection between the unresolved financial disagreement and the subsequent allegations.
The crucial meeting took place on 7 February 2025, with the worker meeting with three representatives from the employer: the human resources/administration manager, the sales manager, and a director.
The context for the discussion was the employer's proposal to terminate the worker's employment based on allegations relating to the period from 18 January 2025 to 4 February 2025.
Notes of the meeting confirm that the employer advised the worker that it was proposing to terminate his employment and sought his response.
The worker disagreed that his conduct was cause for termination and denied that he had underperformed. He alleged that the director had engaged in bullying and harassment and had been aggressive toward him.
There were three breaks during the meeting for the parties to consider their options and responses. Just before the second break, the worker said "that the relationship was not reparable; that both sides had lost trust; and that he wanted a decision on next steps".
When the director asked if he was open to other solutions, the worker said there was no other solution.
After the second break, the employer expressed that it thought the relationship could be saved and proposed that the worker move to another office, working directly with management. A third break was then taken for the worker to think about the idea.
During the third break, the worker spoke separately to the director. When the meeting resumed, the worker said that he did not want to work at any other office, including because he did not want to work with the director who was based there.
He said he wanted to be terminated with "no bad blood, no repercussions" and "fair resolution." An agreement was reached that the worker's employment would be “terminated by mutual agreement.”
He would be paid his full termination entitlements, including 4 weeks' wages in lieu of notice, annual leave and leave loading, and commission on exchanged sales for the first quarter of 2025.
The outcome was valuable to the worker. The FWC noted that "instead of resigning with 1 weeks' notice, he would be paid a sum equivalent to 4 week's wages".
Although he did not discuss his plans with the employer, finishing up immediately would also allow him to accept and start new employment with the competitor.
There was dispute about whether the employer also agreed to release the worker from his post-employment obligations, such as non-compete clauses.
The FWC was prepared to accept that the worker assumed, perhaps by reference to there being "no repercussions", that this was understood, though the evidence on this point was inadequate.
After the said meeting, the management sent the worker a letter confirming his dismissal "by mutual agreement".
The letter stated the reason for dismissal as "unable to come to a resolution to remain in employment that was suitable" and set out the details of his termination payment.
On 11 February 2025, the worker accepted the offer of employment from the competitor real estate agency, with a start date of 20 February 2025.
However, on 19 February 2025, his former employer became aware of his new job and instructed its lawyers to write to the worker, reminding him of his post-employment obligations and threatening legal action.
Upon receiving this letter, the worker decided to apply to the FWC for an unfair dismissal remedy. He argued that the employer's conduct in misrepresenting that he was released from his post-employment obligations induced him to accept the termination of his employment, with the result that he was forced to resign.
The FWC rejected this argument, finding that "On the facts, [the worker] did not resign (and so could not have been forced to resign)".
The FWC also noted that "there was also no termination at the initiative of [the employer], despite its intention to dismiss [the worker] at the start of the meeting on 7 February 2025".
Instead, the FWC found that "Having reached the view that his continuing employment in the business was no longer tenable, [the worker] reached agreement with [the employer] for the termination of his employment on terms that were acceptable to him".
The FWC emphasised that "Any subsequent failure to comply with those terms does not change the fact of the agreement reached", ultimately concluding that the worker "was not dismissed" and dismissing the application.
