Worker demanded employer prove vehicle modifications were safe before he would perform work

A workshop employee initiated a conversation with his supervisor, claiming the employer's instructions for him to perform modifications on a vehicle were unsafe and contrary to vehicle safety requirements.

He sought additional information and wanted to know from the employer what they required him to do was safe, but the supervisor disagreed and sought to inform him that the employer was complying with all its obligations and requirements.

The employee was not prepared to perform the work until the employer provided him with vehicle schematics and assurances that the modifications were safe. The conversation became heated and loud with multiple managers involved, lasting approximately 30 to 40 minutes in the car park while other employees should have been at work.

Employee demanded vehicle schematics and assurances

The employee initiated a conversation with his supervisor because he believed the employer's instructions for him to perform modifications on a vehicle were unsafe and contrary to vehicle safety requirements. He raised these concerns and sought additional information, wanting to know that what they required him to do was safe.

The supervisor disagreed with him and sought to inform him that the employer was complying with all its obligations and requirements. The supervisor made it clear to him that he was required to undertake the work as directed.

The employee was not prepared to do so until the employer provided him with the vehicle schematics and assurances that the modifications were safe. He made this clear to the supervisor in their conversation outside the workshop.

It was a lengthy conversation that was animated on both sides. The supervisor wouldn't or couldn't give him the information he required.

Manager came out yelling during conversation

As the conversation continued, the employee's manager came out of his office yelling at him. He yelled back and told the manager he didn't know what was happening. Another manager then came out of the office and started yelling at him.

The employee says he told this manager the conversation concerns product, and the manager's response was to the effect of "this doesn't concern you, the product doesn't concern you, pack your shit."

The employee says his response to this manager was "you know what, I think I'd better". He then says he looked at his direct manager and said words to the effect of "you know, like, ring me in a couple of days" and the manager's response was "I probably won't ring."

The employee's evidence was this manager terminated him and his direct manager confirmed it. After this he started to pack his stuff and left the workplace. The employee submits this took some time as he had a lot of stuff on site and was on a motorbike.

Employer provided separation certificate indicating dismissal

The employee maintains he was dismissed and forced to leave the workplace by the conduct of his employer.

He further does not accept his employer ever took steps to suggest to him that he resigned, maintaining "No one queried me... They sacked me and they know they sacked me." The employee identified that the employer provided him a separation certificate indicating he had been dismissed.

On multiple occasions after his dismissal he wrote to the employer claiming to have been dismissed and seeking redress.

The employee submitted the employer never challenged his understanding that he had been dismissed.

A payroll coordinator confirmed in writing that he had been terminated. Up until filing its response form the employer did not suggest the employee had not been dismissed despite multiple opportunities to do so.

Employer maintained employee voluntarily resigned

The employer's position was that the employee resigned from his employment and was not forced to do so because of the conduct or a course of conduct by his employer. The employer submitted that in the conversation about purported safety concerns, the employee told his employer he "would pack his things and leave".

The employer submitted they understood this to mean the employee was voluntarily resigning from his position. The employer agreed this was the best outcome and following this remark, the employee proceeded to pack his things, leave the workplace and has not returned.

The employer's position was the employee was not forced to make this decision by any conduct or course of conduct of the employer. The employer said they did not take any action with the intent to bring the employment relationship to an end, or any action the probable result of which would be an ending of the employment relationship.

Supervisor accepted conversation was animated

The workshop supervisor's evidence was that he had a conversation with the employee where he was refusing to work as directed. He accepted the employee wanted to be provided with schematic drawings of a vehicle he was being asked to make modifications to.

His position was the employer didn't have access to this information and didn't need it to undertake the work it was performing. He accepted the conversation was loud and animated and maintained the employee made it clear to him during this chat that if they couldn't come to an agreement he would leave. His evidence was that at no time did managers terminate the employee.

The supervisor's further evidence was the conversation occurred in the car park when people should have been at work. He maintained his recollection was the employee told him if they couldn't come to an agreement he would leave and they would never see him again. They couldn't agree and the employee left.

Manager recalled employee said he'd pack

The direct manager's evidence was he became aware of the conversation because it was happening in the car park outside the window to his office, which was why he went outside. He accepted the conversation could be described as "yelling" because it was loud, animated and people were talking over each other trying to be heard.

His recollection was that after he told the employee the business was not able to provide him the documents he wanted, the employee said words to the effect of "Well, if you can't do anything then I'll pack my bags. I'll pack up my tools and you won't see me again."

The manager accepted the other manager then joined the conversation and said to him words to the effect of "You need to stop it... He's got to go." The manager's evidence was those comments were not directed at the employee and he responded telling the other manager to mind his own business and that he was dealing with things. At no time did the other manager terminate the employee's employment or have the authority to do so.

Employee spent almost two hours packing

The manager submitted that after the employee told him he was leaving he spent almost two hours in the workshop packing up all his tools.

His evidence was that had the employee been dismissed he would have been immediately escorted from the workplace. From his perspective the employee resigned from his position. Later that day when he sent an email to payroll informing them the employee had resigned, it was his usual practice.

The manager accepted he did not ask the employee to confirm his resignation or ask it to be put into writing, acknowledging the only acceptance he offered was verbal, remarking "I'm sorry it's come to this".

He denied the employee asked him to call him in a couple of days, adding that when the employee told him he would leave, he accepted this because the business was not going to provide him the information he wanted and he said he wouldn't work until it was provided.

Commission finds employee gave clear ultimatum

The commission accepted from the employee's perspective he may well have interpreted the other manager's words as being directed at him to leave the workplace. The consistent evidence was this was a heated, loud and animated conversation with lots of yelling and people trying to talk over each other and be heard.

The employee accepted he made it clear to the supervisor he believed the work he was being asked to perform was unsafe and that he made it clear he would not perform work without the information he was seeking being provided or some other agreement reached. The commission's conclusion was the employee provided a clear ultimatum—give me what I need or I am leaving the workplace.

The commission accepted the employee had no intention to resign or leave his job. In these circumstances the parties were engaged in a heated conversation and had reached an impasse. The employee had given an ultimatum.

The commission found it more probable than not that when the employee heard the other manager demand things be sorted out, he interpreted this to mean he had to leave the workplace. The commission reached this conclusion because it was the only option to sort things out where the employer refused to give him the information he wanted and he refused to work without it.

Commission finds no dismissal occurred

The commission found this did not mean however that the employee was given no real or effective choice but to resign because of the conduct or course of conduct of his employer. The evidence was that it was the employee who initiated the conversation.

It was the employee who demanded to be provided with the vehicle schematics and assurances that the modifications he was being instructed to perform were safe or some other agreement be reached. His employer did not initiate this course of conduct or escalate the conversation to an impasse by proposing an ultimatum. These were the actions of the employee.

The commission was not persuaded that any act or omission of the employer forced him resign. The commission concluded all the participants in their heated conversation had a degree of responsibility for what transpired. None of them behaved in the manner appropriate in the workplace or with the maturity and professionalism required.

Despite this failing however, it was not the employer who initiated this conversation. The commission's objective assessment of the evidence was that it did not constitute a dismissal.

The commission considered the legitimacy of the employee's safety concerns. However legitimate these concerns may be, they did not account for the conduct he engaged in.

The commission considered the fact these were serious safety concerns relating to vehicle schematics and modifications suggested they could have been more appropriately raised with relevant safety or manufacturing authorities.

The commission did not consider there was anything unreasonable in management's response that they did not have the information he sought but confirmed the work he was directed to perform was safe.

At no stage did the evidence point to the employer engaging in conduct or a course of conduct with the intention of bringing the employment relationship to an end. Nor did it lead the commission to conclude that the end of the relationship was the probable result of the employer's conduct such that the employee had no real or effective choice but to resign.

Considering all the evidence, the commission concluded it was the employee's conduct that resulted in the ending of his employment relationship and he was not dismissed. The application was dismissed.