By Gaby Grammeno Contributor

The worker began a casual assignment as a trades’ assistant with a builder of new homes in May 2021. In early 2023 she began experiencing difficulties with her colleagues and complained of bullying, lack of cooperation, offensive messages and theft of materials as well as issues with time sheets. In March 2023 she was promoted to Supervisor to dissuade her from resigning, then subsequently to the position of Head Trades Assistant, with increased responsibilities. 

Her difficulties with other workers escalated. On 21 June 2023, a 17-year-old apprentice violently abused and threatened her, calling her ‘a stupid old woman’ and a ‘dumb old cunt’ after she told him she wouldn’t tolerate his abusive behaviour any more.

This incident was witnessed by two other workers, one of whom intervened after further abuse, telling the apprentice ‘That’s enough … we’re in the workplace’, then asked the apprentice if he was OK.

She said that every time she was near the apprentice he was violent and abusive towards her for no reason, that he lied about it and then people had a go at her. She said she was ‘exhausted from constantly being treated like this at work’.

She reported the situation to management saying that she couldn’t put up with it any more and ‘needed something to be done or she would have no choice but to leave’. She was fearful of what the apprentice and two other workers might do while she took a week’s leave and said she’d be ‘forced to leave if she is not protected’. She was too frightened to be at home, so spent the time away, then extended her leave as she became more fearful of returning home.

When she returned to work on 18 July, she was told there’d been an incident between the apprentice and her tenant (a fellow employee). In addition, one of the workers who’d been present but passive at the altercation with the apprentice was also now treating her disrespectfully. She went to the office to say she was leaving, but the General Manager was busy.

She considered it ‘all too overwhelming, having to monitor her bullies for fraud and theft, while management did not address any of the issues she had raised’. To protect herself, she thought, she had no option but to resign.

On 19 July 2023, the worker texted the Site Supervisor, tendering her immediate resignation.

Two managers responded by inviting her ‘to chat’. She texted back that she was leaving because she’d been ‘harassed, bullied, intimidated, lied about, degraded, threatened with violence and even to the point where [the employer's] employees are coming to my home to bash me up’. She said she’d reported the bullying to management on a number of occasions but the problems had not been addressed and she ‘had no choice but to leave to protect myself and resign immediately’.

She reported the apprentice’s behaviour to the police but declined to make a formal complaint.

She believed that she’d been effectively dismissed, and applied to the Fair Work Commission claiming unfair dismissal. The employer argued she was not dismissed, and could therefore not continue with her claim.

IN THE COMMISSION

Before it could deal with the unfair dismissal application, the Commission had to determine whether the worker was dismissed, in the terms of the Fair Work Act. Specifically, whether she’d been forced to resign because of the employer’s conduct.

The employer’s representatives disputed her allegations and gave evidence that they knew the worker ‘had dramas’ with her colleagues but that she’d never mentioned being bullied.

The employer submitted that the worker heavily mischaracterised her altercations with most of the impugned staff, saying they’d investigated her claims and found them unsubstantiated.

The General Manager said that on one occasion, the worker ‘had deliberately orchestrated the situation to publicly humiliate [the apprentice] in an attempt to portray him in a negative light and ultimately cause his dismissal’. The apprentice gave evidence that he felt ‘extremely humiliated and belittled’ by the worker.

The employer claimed they hadn’t dismissed the worker, she’d freely and voluntarily resigned.

On cross-examination, the worker agreed she’d been encouraged to engage with a crisis support service for help with stress, and that there were other steps she could have taken, but didn’t. She had not verified that the apprentice had threatened to have her tenant bashed, nor had she reported this to management. She avoided getting the employer involved with the alleged threats of violence towards her because she felt badly treated by them.

Commissioner Jennifer Hunt observed that two of the worker’s colleagues ‘made no effort to hide their disrespect and contempt for her’, describing one worker’s communications as rude, insulting and ‘incredibly offensive’.

She said the employer had failed its employees by not providing training in a new system, not endorsing the worker as a person authorised to monitor employees, and not addressing the apprentice’s behaviour.

‘The [employer’s] failure to properly deal with this situation sent a message to [the apprentice] and others that [the worker] was a nag and was unreasonable and that she was the problem. Despite his offensive conduct, no action was taken against him.’

Commissioner Hunt was satisfied that on the balance of probabilities, the apprentice did threaten to come to the worker’s home with his friends and bash her. His supervisor ought to have sought permission to suspend him from work for his ‘outrageous and offensive’ outburst.

‘If management had properly communicated with each other, brought the apprentice into the office with a parent and issued to him written warnings, there is a high likelihood that the misconduct of 21 June 2023 would not have happened’, she said.

EMPLOYER HAD ITS HEAD IN THE SAND

Commissioner Hunt described some of the employer’s assertions as ‘ridiculous statements from an employer who had its head in the sand and will do anything at this stage to protect employees from their misconduct because the [employer’s] system and operations failed all of them’.

‘The [employer’s] statements now, in full support of its employees who engaged in clear misconduct … reeks of a desperate employer, trying its best to retain skilled employees in a labour-tight market and being distressed by being involved in these proceedings.’

Commissioner Hunt noted that often it will be only a narrow line that distinguishes a forced resignation from a voluntary one.

She said the worker did have alternatives to resigning. She could have made a workers comp claim or applied to the FWC for a stop-bullying order. She should have shared important information with her employer about the 21 June incident and her fear of being bashed up, and at times her language and behaviour had been unprofessional.

Though the worker ‘was no villain’ and she’d been badly treated, Commissioner Hunt was satisfied that her resignation was voluntary, and ‘not due to conduct or a course of conduct (including omission) engaged in by the [employer]’. Nor was it given ‘in the heat of the moment’.

‘[A]n employer is generally able to treat a clear and unambiguous resignation as a resignation’.

The Commission determined that the worker had not been dismissed, therefore she could not pursue her unfair dismissal claim.

WHAT IT MEANS FOR EMPLOYERS

Managers need to be alert to conflict among staff members if inappropriate behaviour is impairing effective cooperation and breaching standards of conduct. Intimations of bullying must be properly addressed.

READ THE DECISION

Nicole-Marree Smith v Bright Life Homes Pty Ltd [2024] FWC 1494 (7 June 2024)