Case enumerates alternative measure to filing dismissal claim
The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim after she said she had no choice but to resign because she was being bullied by her manager.
The worker said she would only come back to work if the manager was “removed” from the workplace.
She worked as a florist in a flower shop and said her manager made her “work life miserable.”
“I didn’t need to be working with her in store to feel that way, it was mainly toxic via text so there was no escaping her. The only way to escape was to leave, it was a hard decision to do so because I really did love my job,” the worker said.
“I love flowers, I have memories from age 7 that I always wanted to be a florist, I wasn’t wanting to leave, but I knew I couldn’t keep working regularly in such a toxic environment, industry weeks are only three times a year and I could justify that with myself that it would be enough to ‘fill my bucket’,” she added.
To support her claim that the manager was “toxic” in the workplace, another staff member described her communication style as “abrasive, which we had to manage and accommodate.”
The manager argued “there were a number of issues involving staff members and that the common pattern in these issues was always that [the worker] was involved.”
According to records, toward the end of the worker’s employment, “she was very unhappy working under the supervision of the manager.” She said, “some days, she arrived home from work in tears.”
Resignation in 2022
She said there was a “tipping point” that led to her decide to resign, which happened around October 2022.
On this day, the manager sent a long message to the staff, which the worker described as “an essay”. Later that day, the manager followed up with an allegedly “aggressive” message suggesting that staff had ignored her and were not taking her seriously.
The message said: “Hi Team today I asked a communication message to be read out to the whole team today and I asked that each individual message me saying they understand what I was saying. I yet still haven’t received a confirmation. Please explain to me why I am being ignored or not taken seriously.”
After receiving this, the worker reportedly “pushed back” and sent several messages to the manager and the rest of the group. In one reply message, the worker asked, “What is your problem?” She also texted, “It is quite offensive, you have a team that tries to do their best and you constantly put them down. It’s very disappointing.”
The worker did not actually resign for another three weeks, and she said the delay in her resignation was because she wanted to wait until after a new employee had started.
In her dismissal application, she said she “believed that the only way to stop the bullying behaviour was to resign.”
Other options vs. resignation
In its decision, the commission noted that the worker had “other options available to her to address what she considered to be bullying behaviour.”
“She could have sought a meeting with her and voiced her concerns. She could have raised a complaint, formally or informally, to the [owner]. She could have sought a stop-bullying order in the Commission,” it said.
“There is no guarantee that any of these measures would have been successful, however each was a real or effective choice available to her that would have allowed her employment to continue. Although she pushed back on the manager’s messages on 21 October 2022, she did not formally or informally raise a complaint of bullying, or anywhere else prior to giving notice to resign,” it added.
No evidence of being singled out
In deciding if the manager’s conduct was enough to cause the worker’s resignation, the commission said that there was “no evidence” of the worker “being singled out or treated any differently to any other employee under the manager’s supervision.”
“Some messages were sent to all staff and some messages were sent to selected staff depending on the subject matter of the message. The worker was adamant in alleging that other employees suffered in the same way that she did,” the commission said.
“In this regard it is difficult to see how the manager’s conduct, even if it was conduct that caused her to resign, was conduct undertaken with the intention of causing the worker to resign,” it added.
Thus, the commission said that the worker was not able to prove that the manager’s conduct was deliberate and planned to make her quit work, so there’s no unfair dismissal.
