'If you don't start showing your peers respect, there's the door,' says restaurant owner
The Fair Work Commission (FWC) recently dealt with a case involving a general protections dispute between a worker and her employer.
The employer raised a jurisdictional objection, arguing that the worker was not dismissed but had instead abandoned her employment.
The case required the FWC to determine whether the worker's employment was terminated at the initiative of the employer.
The worker was employed on December 13, 2023, as a chef. On January 22, 2024, the worker had a conversation with one of the co-owners of the employer about her work hours and other matters.
Later that day, she received a phone call from one of the co-owners, who allegedly raised his voice and said: "How dare you speak to [your co-worker] that way? [She] is the most hard-working person in the restaurant, without her there is no [restaurant]. If you don't start showing her and your peers respect, there's the door."
The worker, feeling uncomfortable and distracted by the conversation, decided to leave work mid-shift after discussing the situation with her immediate supervisor.
The following day, she was told not to come to work and was subsequently removed from the employer's Facebook group chat, which provided access to rosters.
Was it abandonment of employment?
The employer contended that the worker was not dismissed but had instead abandoned her employment by walking out during a busy shift and failing to contact the manager with any reason for not returning to work.
The employer argued that the worker's supervisor did not have the authority to allow her to go home and that the worker had been unable to fulfill her role, leading to customer complaints and a loss of business.
The FWC considered the factual circumstances of the case and found that they did not support a finding that the worker had shown an unwillingness to substantially perform her obligations under her employment contract on an ongoing basis.
"To find that a termination of employment is at the employer's initiative, it is sufficient that the employer's conduct, would, on any reasonable view, be likely to bring the employment relationship to an end."
The FWC further noted several factors, including:
- The worker was given permission by her supervisor to leave mid-way through her shift.
- The worker attempted to ascertain whether she should return to work the following day and was told not to attend.
- The employer's email and letter to the worker on January 22, 2024, clearly stated that the termination of her employment was effective that day.
- The employer removed the worker from the Facebook group chat necessary to access rosters and blocked her phone number.
- The employer made no attempt to contact the worker after January 22, 2024.
The FWC’s consideration
The decision emphasised the importance of examining all the circumstances, including the conduct of both the employer and the worker, when determining whether an employment relationship has been terminated at the employer's initiative.
The FWC reminded employers to carefully consider their actions and communication when dealing with employee issues, as their conduct may be interpreted as a termination of employment, even if that was not the intended outcome.
The FWC dismissed the employer's jurisdictional objection, stating: "All these circumstances lead to a conclusion that the [worker's] employment was terminated at the initiative of the [employer]." It then referred the matter to a conciliation conference.
