Employer argues worker made decision not to return to work
The Fair Work Commission (FWC) recently dealt with the unfair dismissal claim of a worker who said he was dismissed after a heated exchange with his co-workers.
The employer argued that it was the worker’s decision not to return to the workplace and that he was not dismissed from employment.
Background of the case
Diego Barbaro joined the employer in a welding role, specifically working on fold-up doors. He had two periods of employment: first on a part-time basis from 8 August 2022 to 25 October 2022 and then re-employed in a different welding role on a casual basis from 8 February to 2 May 2023. The dispute arose during the latter.
The employer is reportedly an established manufacturing business involved in producing steel and aluminum roller shutters, truck doors, and grilles, and providing maintenance and repair services. Barbaro worked at its Melbourne facility.
During his employment, Barbaro claimed that he identified and reported safety issues related to welding duties and forklift operations.
The ‘heated exchange’
In May 2023, Barbaro had an “animated and heated exchange” with a co-worker regarding a work request he felt could jeopardize his safety. He admitted to being "frustrated" and speaking "directly" during this conversation, driven by concern for his safety, but denied being aggressive. The exchange took place in the office area and was witnessed by the general manager.
Later that day, after a few hours after the initial exchange with the co-worker, the general manager had another talk with the worker on the workshop floor.
After this second exchange, Barbaro left the workplace. The following day, Barbaro briefly returned to the workplace to document safety concerns raised during these proceedings.
According to him, during that time, he was directly dismissed by the general manager and instructed not to reapply for work.
He also alleged that the termination constituted adverse action under the Fair Work Act. As a remedy, he sought reinstatement to his position after workplace improvements or compensation.
Meanwhile, the employer argued that Barbaro's decision to leave the workplace and not attend work was his own, and it was his actions that ended the employment relationship.
It said that Barbaro's actions were not forced by the employer, and the termination of his employment was not contemplated or expressed by the general manager.
‘Don’t apply for a job here again’
The worker claimed that the general manager said the following statements during their confrontation:
- “Leave, leave now.”
- “Don’t apply for a job here again.”
- “Fuck off.”
He said he understood it as the general manager “terminating his employment.” He said that there “could be no other ordinary meaning to these words” and “that had [the general manager] not said these words to him, he would have continued to work and not left the workplace.”
Additionally, the worker said that the alleged dismissal “was a direct result of the words and actions of his employer through [the general manager,] that left him no other choice but to follow the direction given to him and leave the workplace and his employment.”
The Commission’s decision
In its decision, the Commission said that the evidence that the worker presented “does not support [his] version of events.”
“Critically, there is insufficient evidence before the Commission to find that [the general manager] used words, or words to the effect, as has been alleged.”
It said the worker’s proof was also lacking that the employer terminated his employment. “Nor [did] the employer engage in conduct (or course of conduct) that was intended to bring the employment of Barbaro to an end, was likely to have that result or was the principal constituting factor leading to the cessation of the employment relationship,” it said.
“The [worker] made no attempt to return to work, to clarify or remedy what had occurred the previous day or confirm if the casual employment relationship had come to an end,” the Commission also noted. Thus, it ruled that the worker was not dismissed.
