'I don't want to work here anyway. I don't want to work with these conditions'

Managing director dismisses 'agitated' and 'emotional' worker: Is it unfair?

'I don't want to work here anyway. I don't want to work with these conditions'

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed he was unfairly dismissed from his employment.

The employer’s managing director dismissed the worker after the former’s subordinates reported that the latter quit during a meeting to discuss his performance. They also described him as “agitated” and “emotional.”

Meanwhile, the worker argued that his employment was terminated at the initiative of his employer, while the company maintained that the worker had resigned from his position.

Background of the case

The worker was employed by the company as a Warehouse and Freight Handler from June 2023 until January 2024.

On January 25, 2024, the worker attended a meeting with his managers to review his performance. During the meeting, the worker became increasingly agitated, raising his voice and expressing his frustration.

According to records, it was during this moment that the worker said words to the effect of "I don't want to work at [the company] anyway" and "I don't want to work with these conditions."

The managers present at the meeting described the worker's manner as "aggression, anger," "frustrated and annoyed," and "defensive, angry."

The meeting ended shortly after, leaving the managers with the impression that the worker no longer cared about the business.

The aftermath of the meeting

Following the meeting, the managing director, who was overseas at the time, was informed about the worker's statements. The managing director attempted to contact the worker and eventually sent a text message, stating:

"Hello [worker], i just wanted to thank you for everything you have done at [the company] since you started 6 months ago, but after speaking with the 2 Directors and the Operation Manager this afternoon, there is [sic] several issues that keep coming up and it was noted that you made several comments that you "no longer want to work at [the company] anyway", or something along those lines, and the board has taken this seriously. This conduct does not fit the company culture or agreement that employees signed up for, and Monday 29th January 2024 will be your last day with [the company]."

The managing director followed up with an email on January 26, 2024, reiterating the decision to end the worker's employment based on his statements during the meeting and the company's observations of his declining performance and lack of interest.

The worker's response

In response to the managing director's email, the worker denied saying that he didn't want to work with the company anymore. He expressed his shock at the decision and argued that he had never been informed about any performance issues prior to the termination decision.

"Firstly, thank you for your feedback regarding my performance, but before this termination decision I was never informed that I was lacking in my performance. It would have been great if you or anyone in the company had given me this feedback earlier. Unfortunately I was never informed about the above-mentioned issues."

The worker also mentioned that he expected advice, feedback, and an opportunity to improve his performance before any action was taken.

Was it resignation or dismissal?

In February 2024, the worker applied for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

The employer objected to the application, claiming that the worker had resigned from his employment and was not dismissed.

After considering the evidence presented, the FWC found that the worker was terminated on January 25, 2024, at the initiative of the employer.

The Commission noted that the worker's statements during the meeting were made in an “agitated emotional state” and did not clearly convey an intent to end the employment relationship.

"It is clear on the facts that when [the worker] uttered these words, or words to that effect, he was in an agitated emotional state. He was responding to criticism of his performance and expressing his frustration at the conditions he found himself in the meeting, of which he had only had short notice."

The FWC emphasized that the action that terminated the employment relationship was the text message from the managing director on January 25, 2024, which set out the reasons for ending the employment, including the worker's conduct during the meeting and the company's ongoing concerns about his performance.

"The action that terminated the employment relationship was the text message from [the managing director] to [the worker] at 4.52pm on 25 January 2024. The message set out two reasons for the decision to bring the employment relationship to an end: [the company's] ongoing concerns about [the worker's] performance, and his conduct in saying that he no longer wanted to work at the business."

Furthermore, the FWC noted that the managing director did not seek to clarify what the worker had meant during the meeting or offer him the option to remain in the business.

Consider context, circumstances of employment

It highlighted the importance of considering the context and circumstances surrounding an employee's statements before making decisions regarding their employment.

"Relying on the reports of the others present in the meeting on 25 January 2024, and after consulting with the [company] board, [the managing director] decided the employment relationship was no longer in the interests of the business and communicated this decision promptly to [the worker]."

Consequently, the FWC found that the worker was dismissed by the employer on January 25, 2024, with the dismissal taking effect on January 29, 2024. It also said that the jurisdictional objection raised by the employer was dismissed, and the matter will proceed to further programming.

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