Employer argues it had right to raise co-workers' concerns at meeting
The Fair Work Commission (FWC) recently dealt with a worker’s claim against her employer after she walked out of a meeting. The worker, Esther Rikkone, filed a general protections application for dismissal against her employer, the New South Wales Masonic Club.
The latter is a not-for-profit registered and licensed club. Rikkone began her employment as a casual food, beverage, and gaming attendant on 2 June 2023, and her employment came to an end on 15 June.
Throughout her time with the employer, she worked six casual shifts, which often involved induction and training. After a series of email exchanges, a meeting was scheduled between the worker and the general manager on 15 June, with the food and beverage manager also present with them.
Worker abruptly left meeting
According to records, the said meeting had the following conversation among the parties:
General manager: “Thank you for coming in. You have knocked on my door a couple of times lately whilst I was in meetings. This is your opportunity to tell me anything you wish to tell me.”
Worker: “When I commenced [working here], [I was promised] 5-6 shifts per week, I need more hours."
General manager: “Unfortunately, there is no guarantee of shifts for a casual employee. We roster according to the needs of the Club. I have read your resume and see that you have a strong management background."
"I would like to discuss a few issues that other employees have raised to me. In fact, l have never had so many staff come to my office reporting issues about a new employee. Why is this?”
Worker: “I am very offended by this. Why did you ask me to come in today? I am going then.”
According to the employer, the worker took offence when informed about concerns raised by other employees, abruptly stood up, and left the meeting.
Three hours later, the worker returned to the employer's workplace unannounced to return her work uniform. The worker also told other staff about her termination and subsequently asked for her fingerprints to be removed from the employer's system.
Before the FWC, the worker claimed forced resignation, but the employer had the following defences:
- It did not terminate the worker's employment.
- Its actions, when analysed, cannot be interpreted as having the probable outcome of terminating the worker's employment.
- The claim that the worker was given an ultimatum to resign and return her uniform in order to receive payment is unsupported by evidence and false.
- At the time the worker's employment ended with the employer, she had other choices or options available to her besides resignation.
- The worker voluntarily resigned and subsequently confirmed this decision through her actions and conduct after her resignation. This includes openly confirming her resignation to other staff members, returning her work uniform, and requesting the removal of her fingerprints from the employer's electronic fingerprint sign-in system.
In the ‘heat of the moment’?
The FWC said that “any suggestion of a heat of the moment resignation evaporates having regard to the [worker’s] intentional acts in advising other employees of her resignation, returning her uniform, and requesting that her fingerprints be deleted from the [employer’s] electronic fingerprint system.”
“[She] had every opportunity to reassess her decision to end her employment with the [employer] post the 15 June 2023 meeting, but instead chose (by her own actions) to reaffirm her decision to leave.”
The Commission also said it did not find any conduct from the employer "that might be said to bring about a 'probable end' to her employment."
“[It] was not ‘probable’ that the [worker] would resign in response to a concern being raised with her at the 15 June meeting. Such concerns were legitimate, and [the general manager] had every right to raise them with the [worker] at the 15 June meeting (or at any other time).”
The Commission said the worker’s employment “ended at the hand of the [worker] herself.” Thus, it said that there was no forced resignation or termination at the employer’s initiative. It then dismissed her application against the employer.
