Employer's profanity during a performance meeting leaves worker 'no effective choice'
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in a general protections dismissal dispute. The case involved a worker who claimed he was forced to resign due to his employer's conduct, while the employer argued the resignation was voluntary.
The worker's claims included allegations of aggressive language, intimidation during a performance meeting, and concerns about how his religious practices were accommodated in the workplace. He also raised issues about unethical business practices and inappropriate performance management.
The employer objected to the FWC hearing the case, arguing that since the worker had submitted a resignation letter, he had left voluntarily and therefore the Commission lacked jurisdiction.
This created the question: was this a genuine voluntary resignation or a "forced" resignation that qualifies as a dismissal under the Fair Work Act?
The worker began employment as an electrician with a small electrical maintenance business in September 2024. The employer's business provided electrical maintenance and repairs to housing projects with approximately four employees.
In late November 2024, the worker tendered his resignation and subsequently filed a general protections application under section 365 of the Fair Work Act 2009. The central issue was whether the worker was dismissed within the meaning of section 386 of the Act, which states a dismissal occurs if "the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
The FWC applied guidance from a previous Full Bench decision in Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli, which established the test for forced resignation as whether "termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign."
A significant incident occurred when the worker attended a mosque during work hours without prior arrangement. While at the mosque, another vehicle reversed into the company van he was driving, creating tension over both the vehicle damage and the unscheduled religious absence.
Following this incident, the director sent an email addressing performance concerns and religious accommodation, stating: "work levels produced by you to date have been below average and not at the required level" and noting "you have been undertaking religious prayer times during work hours. This was never discussed or agreed upon prior to commencement of employment."
The worker approached the director seeking details about these performance issues, leading to a crucial meeting on 25 November 2024 that the worker secretly recorded and submitted as evidence.
During the recorded meeting, discussion about religious accommodation escalated when the worker compared vehicle wear and tear to his earlier refusal to use his personal phone for work calls.
The recording captured the director becoming upset, raising his voice and using profane language: "The bullshit about wear and tear on the phone is a fucking joke" and "Are you fucking serious, are you serious?" When the worker said, "You don't have to get angry," the director replied, "You're making me angry!"
The director also made statements about workplace culture: "I don't want any negative nancies running around my company fucking becoming toxic to other blokes. It festers. What we do with those people, we fucking weed them out... You need to be on the same page as everyone."
The FWC acknowledged the small business context but emphasised workplace power dynamics, stating: "An employer and an employee do not approach each other on a level playing field. An employer is in a position of power and [the director] needs to be aware that behaviour that might be acceptable with a friend or in another context, is not acceptable or appropriate with an employee."
The worker testified he felt scared during the meeting, and the FWC accepted this evidence, finding that the director's behaviour "would make a reasonable person in [the worker's] position intimidated."
The FWC concluded that despite the director not intending for the worker to resign, his conduct made resignation the probable outcome for the worker.
The day after the meeting, the worker took personal leave, texting the director that his "mental health is not in the right place." He resigned the following day.
The FWC determined: "Given [the worker] was reasonably concerned for his mental and physical safety, I find that [the worker] had no effective or real choice but to resign."
While the worker listed multiple other resignation reasons, the FWC focused on the director's conduct during the meeting, stating: "the conduct of [the director] when communicating his feedback and managing [the worker], was what left [the worker] with no effective or real choice but to resign."
With the jurisdictional objection dismissed, the FWC ordered: "The matter will now be listed for a formal conciliation pursuant to s.368 of the Act. Attendance at that conference by both parties is mandatory."
The Commission further explained: "If the matter cannot be resolved, then the Commission will issue a certificate pursuant to s.368(2) of the Act indicating that all reasonable attempts to resolve this matter have been, or are likely to be, unsuccessful. Following that, [the worker] will then have 14 days to decide whether to exercise his legal right to pursue a general protections application in the Courts or, by agreement with [the employer], in the Commission."
