Summary
A worker was accused of being a “disruptive menace” for assaulting the chief executive and causing a panic amongst staff members when he came in to work visibly angry after he had been told to take a leave to sort out his mental health. The employee made a general protections claim against the employer because it had delegated the task of telling him that he had been summarily dismissed from employment to the police.
When is an employee be considered to have been terminated?
A production manager commenced employment on 21 August 2020. The employer alleged that the production manager lied about hours worked and falsified his timesheet, verbally abused his boss and staff, bullied employees on the worksite, harassed the same employees outside work, refused to take a drug test, driving the company vehicle while under the influence, destroying company property and abandoning work on multiple occasions. There were also complaints against the production manager from contractors and sub tenants of abuse and sexual harassment which then caused the employees and contractors to leave and consequently caused financial disruption to the business.
First warning
The production manager was given a verbal warning on 13 August 2021 regarding his behaviour at work. Another meeting was scheduled on 3 November 2021 to discuss his acceptable behaviour. As a result of that meeting, the production manager was advised to take 3 weeks of annual leave to attend to his personal challenges instead of giving him an immediate notice of termination.
Altercation with the boss
Two days later, more serious allegations occurred on 5 November 2021 when the production manager returned to work despite having been directed not to return to work until after 3 weeks. His immediate supervisor and boss met him in the parking lot and ordered him to take a drug test or he would not be allowed to return to work. The production manager did not heed his supervisor and instead, he sat in his car.
The supervisor walked up to the production manager’s car and told him again to take a drug test as all other staff members were taking the same drug test. The production manager drove away. The supervisor drove a utility vehicle and blocked the production manager’s way. The production manager assaulted his supervisor, choking him with one hand and shoving him against a wall.
The manager and other employees came and pulled the production manager away from the supervisor. The police were called and the police then escorted the production manager to his locker to get his things and escorted him off the premises. The supervisor had requested that the production manager not be allowed on the property again.
Notice of termination sent 3 days after altercation
Despite this, the production manager texted fellow employees informing them that he was going to return to work. Three days later, on 8 November 2021, the production manager returned to the worksite with a certificate of capacity from his doctor, but he was not dressed to perform work. In the evening, the supervisor sent the production manager a notice of termination of employment listing his undesirable behaviour and the actions resulting in his termination.
Application for general protections
The production manager then filed an application for general protections but the company raised a jurisdictional issue claiming that the application was filed way beyond the 21-day period after termination.
Jurisdictional question: When was the production manager dismissed?
The first question was whether the production manager had filed his application beyond the 21-day period immediately following his dismissal. The production manager argued that he had been dismissed only on 8 November 2021 when he was sent a notice of termination and so his application was filed within the 21-day period. The company replied that the written notice of dismissal sent to him on 8 November 2021 was only a confirmation of the decision to dismiss him on 5 November 2021 when he was told to take all his belongings and not come back.
The Fair Work Commission held that the date of dismissal of the production manager was the day he was given the notice of termination. The FWC reasoned: first, the employee should not have to divine his dismissal from the altercation that had taken place on 5 November 2021. The mere fact that there was an escalation of violence in the workplace between the employee and the manager does not mean that the employee was immediately dismissed as of the day of the violent altercation.
Second, there had previously been volatile events that did not result in his dismissal and so the production manager should not have been expected to understand that he was dismissed as of 5 November 2021 when the volatile work relationship escalated.
Third, the employer could not have delegated the task of advising the production manager of his dismissal to the police. Lastly, the letter of termination dated 8 November 2021 clearly stated that the termination of the production manager was “effective immediately.”
The FWC found that the application had not been filed out of time.
Source:
Callum J Reynolds v Concrete Sleepers Victoria Pty Ltd [2022] FWC 631 (24 March 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/631.html
