'If you make my wife stressed, I'll kill you'

By Mike Toten Freelance Writer

The importance of considering incidents at work in the context in which they occurred has been demonstrated by a recent decision that allowed a general protections claim to proceed.

The Fair Work Commission held that a manager could not rely on his racial background (Korean) to excuse conduct that included bumping into a young employee and threatening him with violence, even if the manager had no intention of actually being violent.

Facts of case

'The employee was an 18-year-old school leaver who had started work at a Japanese restaurant two months earlier.

He claimed that the manager had frequently patted him heavily on the back or shoulder and exhorted him to improve his work performance. One day when doing so he told him that he was making his (the manager’s) wife stressed and mentioned that she co-owned the restaurant. He then added that if he continued to make his wife feel stressed, he would “kill” him. A few minutes later the manager pushed the employee as he was walking toward the kitchen, causing him to stumble but not fall.

The employee resigned two days later before his next shift (claiming he was forced to by the manager’s conduct) and lodged a general protections claim.

The employee had contacted both health and safety authorities and the police, and when both said they would not take the matter any further, he decided he had to resign.

The employer claimed that the employee voluntarily resigned.

The FWC found that pushing the employee and patting him had not been violent, but was “unnecessary and unreasonable”. The employer claimed that the manager’s background was Korean, and in that culture physically touching employees while counselling them about their work was considered acceptable behaviour. Likewise, a “death threat” in that context would not be taken seriously.

Context more relevant than culture

The FWC also found that conduct that might be tolerated in a different culture need not be acceptable in Australian workplaces or under Australian law. Employers have to adapt their work conduct to avoid physically intimidating or threatening employees, no matter how unintended the threats may be nor how “normal” they may be to the perpetrator. 

In terms of context, even if the manager had no intention to “kill” the employee, saying he would do so was a thoughtless and intimidating remark. The employee, who was also young and inexperienced, had objective reason to fear for his health and safety at work. The FWC said that a less “vulnerable” employee may have handled the situation more assertively.

The FWC added that the manager’s conduct did not amount to an intention to end the employment contract, so it was not serious enough to have repudiated it. However, the physical contact and threat of violence were unreasonable and unnecessary.

Decision

The FWC held that, given all the circumstances of the case, the employee was forced to resign. Therefore, his general protections claim was within jurisdiction and could proceed.

What this means for employers

The case is not yet decided; the FWC has simply ruled that it can proceed to conference stage.

However, it emphasises the point that “cultural differences” cannot be relied on to excuse conduct that is otherwise unacceptable in Australian workplaces or under Australian law. Also, the power relationship between the parties will be significant – in this case, the work relationship was a very unequal one.

The test of a “forced resignation” is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. This case is an example of the latter scenario.

Read the judgment

Nathan Christopher Green v KS United Pty Ltd [2022] FWC 3228 (7 December 2022)