Worker stated he was going through personal issues when confronted about behaviour toward customers
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was employed full-time as an engineer from 26 September 2024 until 12 June 2025.
From all accounts, the worker was a diligent and competent employee. Issues arose towards the end of the worker's employment, and both parties bore some blame for the issues that arose.
The worker ultimately submitted notice of his resignation on 7 June 2025 and identified an end date of 13 June 2025. The trajectory of things changed after the worker sent an email to an accounts manager on 10 June 2025.
The email requested that outstanding superannuation payments be made today and stated: "Any delay will cause serious problems."
The accounts manager and general manager took this statement as a threat, and the general manager summarily dismissed the worker for serious misconduct on 12 June 2025.
The case required the FWC to examine whether there was a valid reason for dismissal, whether the worker was given procedural fairness, and if necessary, what remedy should be ordered.
Workplace tensions over timekeeping
The critical events were captured in documentary evidence. At 2:45pm on 4 April 2025, the general manager sent the worker and a director an email explaining why the worker was required to clock on and off every day.
The general manager disputed that the worker did not have to clock on and off every day because he was a salaried employee and provided an excerpt of advice from the Fair Work Ombudsman about the requirement to record hours for salaried employees on an annualised wage.
The general manager stated the worker could email his hours for that week, but directed the worker to clock on and off every day in the future.
At 3:03pm on 4 April 2025, the worker sent an email to the general manager and the director.
The worker indicated that he had read advice that employers could ask an employee to clock on and off, but it was something that could be negotiated.
The worker stated: "I will clock on and off from the Workbuddy app on my computer if that is ok. I will find out how to do that on Monday. From memory, it was just a matter of resetting the Work Department and Manager."
At 7:03am on 29 April 2025, the worker sent an email indicating that he did not need to clock in and out every day as he was on a salary contract. The worker indicated he believed he could comply with record-keeping requirements by submitting his hours on a weekly basis.
The director sent an email to the worker and the general manager at 7:04am on 29 April 2025, which stated: "Please clock in and out daily."
On 30 April 2025, the worker sent another email which stated: "I am not clocking in and out every day. I am not a factory worker. I will fill out my time sheet at the end of the week, as is normal in the industry. If there is any reason to do otherwise, please explain it to me."
The accounts manager also provided evidence that she noticed on 30 May 2025 that the worker had already recorded his finishing time for that day, even though it was only midday, and the worker had not finished work.
The accounts manager gave evidence that the worker was entering his work times before the day had even started.
Resignation notice and superannuation dispute
The accounts manager stated she called the worker to find out what was going on.
The accounts manager stated she referred during the call to all employees being subject to the same timekeeping rules and that the worker stated, "I am not everyone else."
The accounts manager stated she removed the worker's access to the timesheets, which the worker had been using to record his hours on his computer. The accounts manager gave evidence that the worker was "very disgruntled" about the call.
The worker submitted notice of his resignation on 7 June 2025 and identified that his employment would end on 13 June 2025. The worker identified the reasons for his resignation as being that he was not paid for the week ending 9 May 2025, and his superannuation contributions had not been paid.
Importantly, the worker stated the employer would pay his outstanding entitlements and superannuation contributions by 20 June 2025 or "face legal action(s)".
The worker sent an email to the accounts manager at 5:03pm on 10 June 2025. The worker stated that two superannuation payments owed to him appeared extremely overdue.
The worker provided updated fund details and stated: "Please make the necessary payment today to: Any delay will cause serious problems..."
The general manager sent an email to the worker at 2:30am on 11 June 2025 which stated: "Its (sic) unfortunate you've decided to part ways with us. I accept your resignation. I accept the 13th of June will be your last day."
The general manager sent an email to the worker, the director, and the accounts manager at 2:30am on 11 June 2025.
The general manager's email stated the worker's superannuation had always been paid, and the current issue was due to the worker's details bouncing back when payment was attempted.
The general manager stated the worker knew this and had spoken to the accounts manager about it.
The general manager attached screenshots of text messages from the accounts manager to the worker on 15 May 2025 and 5 June 2025, where the accounts manager asked for the worker's superannuation details.
Dismissal after perceived threat
The accounts manager forwarded the worker's email to the general manager at 11:01am on 11 June 2025 and stated: "Is he threatening me? I feel threatened, this has really upset me. I'm trying to hold it together for Robyn, but I might go home. What if he turns up here? I don't feel safe, can you call me pls."
The general manager sent a text message to the worker at 6:42am on 12 June 2025 which directed the worker not to attend work and stated his employment was terminated due to aggressive behaviour towards another employee.
The general manager sent an email to the worker at 8:45am on 12 June 2025.
The email stated: "Below is an email I received. I've also received a call this morning further to this email. I will not tolerate this type of behaviour in the workplace. This is serious misconduct as it violates the fundamental principles of a safe and respectful work environment and breeches (sic) your notice you provide. As of today, you are no longer required to come to work, and your notice has been terminated. You will be paid up until 11th of June."
On 19 June 2025, the accounts manager sent an email confirming she had resolved the issues with the worker's superannuation fund.
The accounts manager indicated the fund's ABN had changed, and that is why the payment she had attempted to make was rejected.
The accounts manager indicated that the fund stated it was the worker's duty to notify the employer of the changed details.
The Commissioner considered the evidence established that the worker became quite a difficult employee for the employer to manage from at least around April 2025.
The Commissioner agreed with the employer that its direction for the worker to record his working hours each day was a lawful and reasonable direction that the worker was required to comply with, even though he was paid an annual salary.
There were a range of reasons for the employer to require the worker to accurately record his hours, including to ensure that the worker was not underpaid and to comply with its safety obligations.
The Commissioner stated it was unclear why the worker was so concerned about recording his working hours each day, and his resistance to doing this naturally created suspicion as to the reason why.
The Commissioner considered that the worker's unreasonable actions in relation to the recording of his working time led to a breakdown in his relationship with the employer.
Interpretation of email language
The worker also behaved somewhat unreasonably in relation to his outstanding superannuation contributions.
The evidence suggested the worker would have received his outstanding superannuation contributions on around 15 May 2025 if he had complied with the accounts manager's request for him to provide his updated superannuation account details.
However, the Commissioner considered the employer was also at fault for not advising the worker and other affected employees that it was unable to pay superannuation contributions on the due date of around 18 April 2025.
The worker was entitled to be advised about this issue in a timely manner. The worker was also entitled as an employee to raise concerns about the employer not meeting its superannuation obligations.
In any event, the key issue in determining whether the worker was unfairly dismissed by the employer was what to make of the worker's email to the accounts manager on 10 June 2025 and particularly his inclusion of the words: "Any delay will cause serious problems."
The Commissioner stated: "I can understand why [the employer] was concerned about the language used in [the worker's] email to [the accounts manager]. [The worker] could clearly have used better language. However, I accept [the worker's] evidence given during the hearing that he was referring to taking legal action, potentially through the Australian Taxation Office, if the outstanding amount was not paid and that [the worker] was not intending to convey a threat to physically harm [the accounts manager]."
The worker's explanation was also consistent with his resignation letter, where he referred to the employer facing "legal action" if his entitlements were not paid. It would obviously have been much better if the worker used this same language in his email to the accounts manager.
The worker's language left scope for the concerns raised by the employer to arise.
In addition, the general manager was unable to identify any previous examples of the worker behaving aggressively or violently during his employment.
The worker also did not present that way during the hearing. There was an important and substantial difference between an employee who was difficult to deal with and prepared to strongly defend their legal rights in written communications, and an employee who threatened violence against another employee.
The Commissioner considered that the worker clearly fell into the former category.
Valid reason and procedural fairness assessed
The Commissioner examined whether there was a valid reason for dismissal related to the worker's capacity or conduct.
The Commissioner stated: "I find that there was not a valid reason for [the employer's] decision to dismiss [the worker] on 12 June 2025. I do not accept that [the worker's] email to [the accounts manager] on 10 June 2025 is fairly interpreted in all the circumstances as a threat of any sort of physical harm to [the accounts manager]. I consider [the worker] was referring to the prospect of legal action if his outstanding superannuation contributions were not paid."
The worker was entitled to raise the prospect of legal action to apply some pressure to the employer to pay his outstanding entitlements. It was common for letters of demand to refer to further consequences if the requested amount was not paid.
The Commissioner stated it was conceivable that the worker's refusal to comply with the direction to clock on and off each day could have constituted a valid reason for dismissal.
However, given that the employer appeared to have reluctantly agreed to allow the worker to use an alternative method of recording his hours until the accounts manager removed the worker's access on 30 May 2025, the Commissioner did not consider it was a valid reason for dismissal in this case.
The lack of a valid reason related to the worker's capacity or conduct weighed in favour of finding the worker's dismissal was unjust and unreasonable.
The Commissioner found the worker was not notified of the reason for his dismissal before the general manager informed the worker that his employment was terminated on 12 June 2025.
There was no evidence that the employer had any conversations with the worker before the general manager sent text messages and an email communicating the dismissal to the worker on 12 June 2025.
This factor weighed in favour of finding the worker's dismissal was unjust and unreasonable.
The Commissioner found the worker was not provided with an opportunity to respond to the reason for his dismissal before the general manager informed the worker that his employment was terminated on 12 June 2025.
This factor weighed in favour of finding the worker's dismissal was unjust and unreasonable.
One week compensation ordered
The Commissioner stated: "Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of [the worker] was unjust and unreasonable. There was not a valid reason for [the worker's] dismissal and [the worker] was denied procedural fairness. None of the factors weighed against finding that [the worker] was unfairly dismissed."
The Commissioner found the worker was unfairly dismissed. The worker did not seek reinstatement, and the Commissioner was satisfied that reinstatement was not appropriate in this case.
After considering the various factors, the Commissioner determined it was appropriate to make an order for the employer to pay the worker compensation of one week's wages.
Based on an annual salary rate of $90,000, which equated to $1,730.77 gross plus superannuation of $199.04.
The main reasons for settling on the figure of one week's wages were that the worker was intending to resign on 13 June 2025, which was the day after his dismissal, and the worker should not have been summarily dismissed and should have received one week's notice of termination.
The FWC also noted that the worker's conduct contributed to the dismissal in that the language he used in his email was ambiguous and he had created tension in the employment relationship, and it was relevant that the employer was struggling to deal with the worker's behaviour in the workplace, and this impacted on its response to the words used in his email.
The Commissioner made an order that the employer must pay the worker $1,730.77 less taxation, plus superannuation of $199.04.
