FWC considers whether it was unfair dismissal
A worker recently filed an unfair dismissal claim against his employer, alleging that he was forced to resign because the latter did not cover his shift during a family emergency.
The worker, Sumeet Thakur, filed an application before the Fair Work Commission (FWC) seeking redress from Assetlink Services (11) Pty Ltd.
He initially joined a different company in 2013, which was acquired by the employer. The worker said that he was terminated from his employment on 7 June 2023, but the employer said he voluntarily resigned from his position.
In May 2023, the worker applied for an internal transfer within the company, specifically to Westfield Shopping Centre.
Later, a contract for permanent full-time employment at Westfield, with a start date of 26 May 2023, was presented to the worker by the Employer on 16 May.
According to records, the worker claimed to have never signed this contract. The terms of the agreement required him to work on Tuesday, Wednesday, Thursday, and Friday nights from 8:00 p.m. to 8:00 a.m.
Towards the end of May, the worker said he participated in the induction training at Westfield. However, on 2 June, the worker sent a text message to his Westfield supervisor, requesting for the latter to cover his night shift for that day.
In response, the supervisor said he couldn't cover the shift and reminded the worker about his obligation to begin his rostered shift that night.
The worker replied, urging the supervisor to cover the shift, citing “a family emergency.” However, the supervisor again said he couldn't assist him.
‘Resignation’ via text
The worker then allegedly resigned via text message on 2 June, expressing his unwillingness to work that night and his intention to submit a formal resignation.
Consequently, the worker failed to attend work that day, as well as the subsequent nights.
On 8 June, the supervisor sent a text message to the worker, acknowledging his resignation due to his absence from shifts in the previous week and the current week. The supervisor then requested an email resignation letter from the worker.
The worker replied, assuring him that he would provide the requested letter. The next day, the worker inquired about missing shifts via text message.
On 10 June, the worker emailed another management member, expressing his desire to explore job opportunities at other Assetlink work sites, explaining that the Westfield Airport West Shopping Centre did not suit him.
When he was unsuccessful, the worker filed the dismissal claim.
Worker couldn’t attend roster due to a family emergency
The worker said he completed his induction training on 1 June, and was “supposed to work on 2 June 2023,” but said that he “had to cancel the work because of an emergency in [his] family.”
He said he made an early request to cancel his shift on 2 June 2023, but his manager tried to force him to attend work “at any cost.”
Additionally, the worker said he only had a “very small conversation” by text message on 2 June 2023 where he “only mentioned to [the supervisor] that [he] will resign if [he has] to be pushed to work in [a] family emergency,” but he alleged that did not say in the message that he was resigning.
He argued that the supervisor, “acting out of vengeance,” forced him to attend work on 2 June 2023 “at any cost” and ignored his family emergency. He also said that “he had no roster, and none had [ever] been provided to him.”
Meanwhile, the employer argued that the worker "had multiple opportunities to indicate that he had not resigned" and "to clarify that his text message was not intended to be a resignation."
The employer said, "he could have done this by attending for his next scheduled shift on 6 June 2023," or "calling the supervisor," or "responding to the [supervisor's text] to say he had not resigned," or "emailing [management] to say he had not resigned."
Worker did not inform the supervisor about the reason for his absence
According to records, the FWC found that the worker “did not advise his supervisor, or anyone else, that he had a family emergency on 2 June 2023, and this was the reason he could not come to work.”
“The only reason he gave for not being able to attend his shift that night was that he was ‘badly stuck’,” the FWC said.
“In this case, the [worker] advised of his intention to resign his employment just one and a half hours after he asked if his shift could be covered because he was ‘badly stuck’. It is notable that at no stage did [he] tell his supervisor why he could not attend work.”
“[He] did not speak to his supervisor by phone either on 2 June 2023 or in the days thereafter and seek to explain the situation he was in (or inquire as to his next shift),” the Commission added.
Moreover, the Commission said the employer “provided [him] with a very reasonable period within which he could have advised that his employment had not been terminated, but he did not do so.”
“Rather, after having said he would resign and having not attended for any further shifts and being told his resignation was accepted, the [worker] took no action to correct the employer’s view,” it said.
Thus, the FWC said that the worker’s employment was not terminated at the employer’s initiative. It then dismissed his application.
