No dismissal: berated worker left of own accord

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No dismissal: berated worker left of own accord

An employer has beaten a claim for unfair dismissal after it was held that the employee – who left work after being told off by a consultant – was never actually fired.

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An employer has beaten a claim for unfair dismissal after it was held that the employee – who left work after being told off by a consultant – was never actually fired. 

Background


The employee, Mr C, claimed he was dismissed from MTP Marble Granite Sandstone in October 2016 following a dispute with a consultant. 

The consultant, Mr F allegedly told him: “This is not good enough, I’ve had it up to here, I set everything up before I left for overseas so that sales revenue would start building with our new bankers…".

Mr F had been hired as a consultant, was not a manager of the business and did not have any power to dismiss employees. At no time did the conversation turn to the topic of dismissal.

However, Mr C responded by threatening to make a complaint to the Fair Work Commission, although he did not specify under what grounds the complaint would be made. Shortly after, Mr C left the premises and did not return to work. 

The employing company said that at no point did the employee text, write or send any other form of written communication to the employer after leaving the premises. 

Meanwhile, Mr C said he understood that his employment had been terminated because the employer did not contact him. He subsequently made an application for an unfair dismissal. 

The law


A person is "dismissed" under s386 of the Fair Work Act if that person's employment has been terminated on the employer's initiative. If a person resigns because he or she was forced to do so because of the employer's conduct then that will also count as a dismissal. 

No reason to be believe he was dismissed 


The commission found Mr C had no reason to believe he was dismissed by the company, especially as the consultant had no power to fire him and the issue of termination of employment was not discussed.

Nor did the commission accept the employee had no option but to resign. 

"Whilst I empathise with the way that the applicant may have felt during this conversation, the evidence does not indicate to me that the applicant had no real choice but to resign after this interaction. It is clear that the applicant did not like what was being said, and chose to leave the premises...

"The applicant was not terminated, but in fact, left on his own accord. Having made these findings, it follows that the application for unfair dismissal in this matter is without jurisdiction and must be dismissed," the commission ruled. 

SC v MTP Marble Granite Sandstone

This article was written by Chloe Hava.


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