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Worker sent packing... but not a sacking

The FWC found the employer's actions did not constitute a dismissal.
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Worker sent packing... but not a sacking

Worker sent packing... but not a sacking

13 May 2020

A worker who was physically accosted by his boss and told to 'get your sh!t and get the f*ck out' has failed to convince a tribunal he was sacked.

The Fair Work Commission found the employer's actions did not constitute a dismissal.


Facts of the case

The worker was employed in September 2018 as a casual site supervisor at a landscape construction business. He worked between 36 and 46 hours a week.

In November 2019 he was involved in an altercation with the two brothers who ran the business.

The Commission heard that the brothers became concerned about the worker's erratic behaviour while he was operating machinery. They believed he was under the influence of drugs and was operating the machinery in a hazardous and careless manner.

After watching him for 15 minutes, one of the brothers asked him to leave the site.

The situation then quickly deteriorated. The brothers maintained the worker became aggressive and was again asked to leave the site.

The worker, meanwhile, maintained that one of the brothers had started 'mouthing off' during his shift, accusing him of not completing a task.

He said the brother 'arced up' when asked not to speak like that, saying words to the effect of:  "Get your sh!t and get the f*ck out and never come back, you will never get another cent".

The worker said he was confused when the same brother said "you'll be back". He took that to mean he was expected to apologise and come back, but said he was not prepared to do that.

While collecting his belongings, one brother grabbed him by the arm and accused him of being on ice. He was then grabbed on the arm by the other brother.

He told the Commission it was at this point he decided he was not going to return to work.

A week later, the worker messaged one of the brothers about money owing to him. He said he was again accused of being on drugs, and received a message saying "if you want to come back, things will need to change".

He said the text message confirmed his belief that he had been dismissed.
 
The brothers, however, maintained that the worker was asked to leave the job site but was expected to return.

They said that, despite past issues with the worker, he was a valued employee and the business needed a supervisor.


Decision

Commissioner Simpson accepted that the worker was a valued employee, and that the business had been reluctant in the past to dismiss him despite issues with his conduct.

He also accepted that the worker was told to leave the site, with the understanding he would return. The brother's comment, 'you'll be back', affirmed that the relationship had not been terminated.

The Commissioner said that given the context in which the worker was asked to leave the site, "a reasonable person in that position would not have taken that to mean he had been dismissed".

The text message stating "if you want to come back things need to change" also suggested the worker was not dismissed; rather the employer was "seeking an apology" from the worker for his behaviour.

The Commissioner also rejected the worker's submission that he was unable to return to work after he was physically assaulted.

"I am not satisfied this minor physical altercation was serious enough to warrant the view that he was unable to return to the workplace," he said.

The application was dismissed.


Read the judgment

Corey Fox v Cropper Brothers Landscape Construction T/A Cropper Brothers Landscape Construction [2020] FWC 1860 (16 April 2020)

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