Worker wanted 'breathable' fabric because he felt he 'had a heatstroke every day'
The Fair Work Commission (FWC) recently handled a case involving an employee who claimed he was dismissed over issues with his company uniform.
Krywko worked as a casual supermarket trolley collector for MSN Enterprise Group Pty Ltd. The employer supplied workers to another business, Controlled Trolley Collection Services, which provided services to a major supermarket at various sites in Sydney.
Krywko experienced health issues due to the required uniform, particularly when working in less well-ventilated underground car parks during the warmer months.
Despite raising his concerns with his managers and offering to pay for a more breathable uniform, his requests for accommodation were denied.
Worker’s health issues with company dress code
According to the decision, under the terms of the worker’s contract of employment, he was required to wear a uniform while he was working. Part of the uniform was a ‘hi-vis’ collared shirt, which was 100% polyester and had a thick thread. It had a ‘Controlled’ logo imprinted on the back.
In the cooler months, the worker reportedly wore this item “without difficulty.” As the weather warmed, he began experiencing health issues because of the uniform, particularly when he was working in less well-ventilated underground car parks such as the Bondi facility.
Krywko who has autism, ADHD, and clinical anxiety, stated:
“I would sweat uncontrollably while working, I would feel dizzy and dehydrated all the time. My cognition also felt impaired. I sometimes had to find a seat while working because I felt like I was going to faint. I fainted a couple of times once I got home from work. I have never fainted before this and it stopped after my employment ended. I vomited at work a few times due to these symptoms and how unpleasant it all was. I was feeling like I had heatstroke every day.”
“One of the symptoms of my anxiety is that I have poor temperature regulation, which made things worse. I also have some sensory issues due to autism which made the shirt material feel very hot and uncomfortable on my skin,” he said.
Worker’s alleged resignation
On January 7, 2024, Krywko was approached by a manager who instructed him to wear the company-provided shirt. Krywko refused, citing the negative impact on his health, and left the site, stating, "I'm out, I'm done."
Later that day, Krywko contacted the employer's HR representative, Patrick McKee, to discuss the situation and inquire about his employment status.
On January 8, 2024, during a call with McKee, Krywko was informed that if he could not wear the required uniform, he could not perform the role. McKee also told Krywko that he had been asked to "let him go."
Fired over a uniform?
The FWC found that Krywko's words on January 7, 2024, should not have been understood as an unequivocal resignation but rather as an expression of frustration and unwillingness to work that particular shift due to the ongoing uniform issue.
The FWC determined that the termination of Krywko's employment occurred on the employer's initiative on January 8, 2024, when McKee informed Krywko that he could not continue in the role if he could not wear the uniform and that he had been asked to "let him go."
Alternatively, the FWC considered the events as a "heat of the moment" resignation. In such cases, a resignation may be legally ineffective if given under emotional stress or mental confusion, and the employer has a duty to clarify the employee's true intentions after a reasonable time.
Consequently, the FWC dismissed the employer's jurisdictional objection, finding that Krywko was dismissed within the meaning of the Fair Work Act 2009. It then ordered the matter to be relisted for a conference.
