'I am out of here': fiery feud ends in walkout

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'I am out of here': fiery feud ends in walkout

A woman who walked off the job after an argument with her employer was not dismissed but had resigned, the Fair Work Commission has ruled.

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A woman who walked off the job after an argument with her employer was not dismissed but had resigned, the Fair Work Commission has ruled.

The employer claimed that she had tried to orchestrate a dismissal and the FWC concluded she had intended to resign in the near future.

Facts of case


Pamela Sherwin was employed as a car detailer in a car wholesaling business. Her daughter was also employed by the business. 

Although Ms Sherwin’s work performance was considered good, the employer had some issues with her daughter’s performance and discussed them with Ms Sherwin. One day, the daughter was absent from work, claiming she was sick and was taking a “mental health day”. When the director of the business mentioned it to Ms Sherwin, she claimed her daughter had been bullied, which the director ridiculed. A loud argument followed, and Ms Sherwin alleged that the director told her she was being dismissed. Ms Sherwin collected her possessions and immediately left the work site. 

The director claimed that Ms Sherwin had verbally abused him and then left. He claimed that it was well-known within the business that Ms Sherwin’s partner was in the process of setting up a new business, and that Ms Sherwin intended to resign to work in that business. 

Assuming that Ms Sherwin would not return to work, the director sent her a separation certificate and termination pay two days later. 

The conversation was witnessed by the on-site manager of the business. 

By the time the FWC heard the claim, the business was no longer trading. The employer claimed that the loss of Ms Sherwin contributed to the failure of the business.

The arguments


The employer claimed that Ms Sherwin intended to resign in the near future and was trying to orchestrate a payout for unfair dismissal.

The manager claimed that he heard her say “I am out of here”.

Ms Sherwin argued that she had no job to go to at the time of the incident (and therefore no income). She also claimed that her employer had said that if she resigned, her daughter’s employment would be in jeopardy. Her partner’s business was not going to commence operating until several months later. The employer made no attempt to contact her afterwards to ascertain whether she would return to work; it simply forwarded her termination entitlements.

Decision


The FWC found that a heated conversation between Ms Sherwin and the director had occurred. Ms Sherwin had been abusive and walked off the job afterwards. The commission accepted the manager’s evidence that he witnessed the conversation. 

Although the director should not have discussed the daughter’s employment with her, Ms Sherwin had voluntarily resigned and it was clearly her intention to resign in the near future to join her partner’s business.

The commission dismissed Ms Sherwin’s claim.

The bottom line: This was a “he said versus she said” case, which fortunately for the employer was witnessed. The FWC took into account the intentions of the employee to resign in the near future when making its decision.

Read the judgment


Sherwin v Hunt’s Wholesale Cars Pty Ltd t/a Hunt’s Wholesale Cars Pty Ltd [2018] FWC 4195, 2 August 2018 
 
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