What is the meaning of employer's 'intent' during termination?
Managing conflicts respectfully and constructively is essential for the health and well-being of both the workforce and the business itself.
Mood swings and arguments are inevitable in a workplace as people may disagree about a company’s policies, tasks, or deadlines.
In Australia, the Fair Work Act provides that employers must provide a safe working environment for their employees and take all reasonable steps to prevent and manage conflicts. Under labour laws, employers are also required to provide training on the effective management of disputes, such as counselling, workshops on cultural sensitivity, and the provision of a fair, non-discriminatory grievance process.
In this recent case, a worker complained “that he was dismissed” due to his “moods being up and down” and because he was “constantly butting heads with the regional manager.”
He further pointed out that his employer said it “no longer had hours for him.”
Background of the case
The worker started working around April 2022 with the employer, a hostel in Brisbane. An agreement between the parties referred to him as a casual employee, appointed as a guest services attendant.
He lived on-site in a caretaker capacity and argued on record that he undertook duties “beyond the scope of his employment contract,” adding that at times he “would be forced to assume further responsibilities that he was not originally employed for.”
Before the Fair Work Commission (FWC), he submitted that he complained about the regional manager.
“This was because the regional manager was constantly absent from the work site, and this meant that [I] had to take on more work,” he said.
He also complained to the employer that the workload was “too much for him” and that he “needed help.” The worker said that these complaints were “ignored.”
The FWC recently dealt with an unfair dismissal case involving an employee who alleged her termination was related to her diagnosis of post-traumatic stress disorder (PTSD).
Mental breakdown
In November 2022, the worker had a “mental breakdown due to the stress of his increased workload,” was unfit for work, and immediately requested two weeks off, which was approved by the general manager.
The worker said that on the first day of his personal leave, he received a call from the employer, “outlining that he was dismissed” and giving brief reasons for the decision, stating “that it was due to the worker’s moods being ‘up and down.’ Also, that the worker was constantly ‘butting heads’ with the regional manager.”
When talking about the worker, the employer also allegedly said that it “no longer had hours for him” and that his “hours were reduced to zero and the hours were filled by the two already hired replacements.”
The worker claimed he was unfairly dismissed.
The New South Wales Industrial Relations Commission (NSW IRC) recently dealt with a case involving an employee who claimed unfair dismissal when her employer allegedly directed her to resign from employment, or else she would face stricter consequences.
Was there unfair dismissal?
The FWC confirmed the worker’s dismissal based on the employer’s conduct.
It explained that “a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”
The commission also clarified that the phrase “principal contributing factor” means “the act of the employer results directly or consequentially in the termination of the employment, and the employee does not voluntarily leave the employment relationship.”
“That is, had the employer not taken the action it did, the employee would have remained in the employment relationship,” it said.
The FWC explained that the employer’s intention, in this case, was to end the employment relationship.
“The intention conveyed by [the employer] was that [the worker] would no longer work for the business.”
“Whether he was told he was dismissed due to his “moods being ‘up and down’” and because he was ‘constantly butting heads’ with the regional manager” (as alleged by him) or that “we no longer had hours for him” (as alleged by the employer), the plain fact is that the employment relationship was intended to be ended,” said the commission.
Thus, the FWC ruled that there was dismissal. The case was then referred to a staff conciliation.
