Fired for requesting female toilets and filing sexual assault complaints?

Employer argues it wasn't dismissal and worker voluntarily resigned

Fired for requesting female toilets and filing sexual assault complaints?

The Fair Work Commission (FWC) recently dealt with a general protections application involving a worker who claimed she was dismissed from her employment due to lodging complaints about alleged workplace sexual assaults and for requesting female toilets at worksites.

However, the worker's application was filed 166 days out of the 21-day time limit, and the employer raised jurisdictional objections, arguing that the worker had not been dismissed and that her application was made out of time.

In this case, the FWC had to determine whether an extension of time should be granted to the worker and if she had indeed been dismissed from her employment. The decision looked into the worker's situation, the employer's arguments, and the legal framework surrounding general protections applications. It also probed the nature of casual employment and the challenges workers may face in asserting their rights.

Background of the case

The worker, who was employed as a traffic controller, made an application pursuant to s.365 of the Fair Work Act 2009, alleging that she was dismissed by her employer in contravention of the general protection provisions of the Act. She claimed to have been dismissed on or around 27 October 2022.

The employer, a company providing traffic control services, raised two jurisdictional objections. Firstly, they denied that the worker had been dismissed, asserting that she was a casual employee and that any reduction in her working hours was due to changes in workflow rather than an attempt to force her to resign.

Secondly, they argued that her application had been made out of time, as it was filed 166 days after the alleged dismissal took effect.

The worker's evidence and submissions

The worker alleged that she was dismissed from her employment due to lodging complaints about alleged workplace sexual assaults and for requesting female toilets at worksites.

She provided various pieces of evidence, including payslips, correspondence with the employer, and complaints regarding the lack of female toilets on-site.

"The Worker submitted evidence on 4 July 2023, consisting of appointment details and an appointment reminder with [a certain doctor] dated 1 April 2023, and a collection of pay advices for the period 20 December 2021 to 17 October 2022."

The worker also sought an order by the FWC for the production of documents by the employer. However, the Commissioner declined the request, stating that some of the material might be included in the employer's possession and that there was no clarity as to the material sought.

The employer’s evidence

The employer submitted that there were no exceptional circumstances justifying an extension of time for the worker's application. It argued that the worker had all opportunities to lodge the appropriate application rather than prosecuting her ineligible unfair dismissal application.

Furthermore, the employer submitted that they did not dismiss the worker and that she terminated her own employment through resignation.

It stated that at no point was the worker guaranteed any set hours, wages, or advanced roster, as she was a casual employee and the majority of their site-based employees were employed casually due to the uncertainty of work in their industry.

"[The employer’s human resources advisor] attests that the [employer] never dismissed [the worker] and any reduction in her working hours was a result of changes in workflow, rather than an attempt by the [employer] to force [the worker] to resign," the decision said.

The HR advisor produced a series of text messages from the worker in which she provided her resignation. These messages revealed that the worker had been offered work by other companies and expressed her dissatisfaction with the number of hours she was receiving from her employer.

The FWC's decision

After considering the evidence and submissions from both parties, the FWC made several key findings. The decision highlights the importance of adhering to the statutory time limits for making applications and the need for clear evidence to support claims of dismissal.

"For [the worker] to have made her application within the statutory time limit of 21 days after she claims the dismissal took effect, the application needed to have been filed by 17 November 2022. The application has been made 166 days out of time."

The FWC also emphasised the definition of "dismissed" under s.386 of the Act, which includes situations where the person's employment has been terminated on the employer's initiative or where the person has resigned but was forced to do so because of conduct engaged in by the employer.

"The meaning of 'dismissed' is provided at s.386 of the Act: (1) A person has been dismissed if: (a) the person's employment with his or her employer has been terminated on the employer's initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer," the FWC said.

Ultimately, based on the evidence presented, particularly the text messages between the worker and her employer, the FWC found that the worker had not been dismissed but had instead resigned from her employment.

The messages indicated that the worker was dissatisfied with the number of hours she was receiving and had been considering offers from other companies. The employer maintained that any reduction in hours was due to changes in workflow and not an attempt to force the worker to resign.

"[The worker's] application alleges that she was dismissed from her employment with the [employer] due to lodging complaints about alleged workplace sexual assaults as well as for requesting the worksites be provisioned with female toilets."

"The [employer] submitted that it did not dismiss [the worker] and she terminated her own employment through resignation. The [employer] argued that at no point was [the worker] ever guaranteed any set hours, wages or advanced roster," the FWC said. Consequently, it dismissed the worker’s application.

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