Don’t Jump The Gun And Wait For Your Termination

In James Lawson v Environet Australia Pty Ltd [2017] FWC 848, Mr Lawsonmade an unfair dismissal claim against his employer, Environet Australia. On 13 September 2016, Mr Lawson’s Operations Manager presented a Safe Work Method Statement for Mr Lawson to sign. Mr Lawson refused and claimed that he was fired as a result. Environet Australia claimed that Mr Lawson was never fired but was stood down due to his violent outburst on that day. In this case, the employee actually wanted to be dismissed, or considered dismissed under the law, in order to make out his unfair dismissal claim.

The Events of 13 September 2016

Mr Lawson stated that, on 13 September 2016, the Operations Manager told him to sign the Safe Work Method Statement right away. Apparently, when Mr Lawson refused, the Operations Manager said: “you will sign everything that the company tells you to sign”. When Mr Lawson refused again, the Operations Manager allegedly said “follow me downstairs”, before saying: “That’s it. I’ve had it, you’re sacked, pack your belongings from your desk and leave immediately”. Mr Lawson then handed over his office key and left. His work email access was cut off.

In contrast, the Operations Manager said that Mr Lawson had actually responded with the words: “I’m not f…… signing that, it’s f….. s…., you’re s…. This place is s…. I’m not f……. signing it”. Apparently, the Operations Manager then politely responded with the words: “I am not asking you to sign it, but what is wrong with the document as to why you won’t?” Mr Lawson then said: “I’m not f……… signing that, it’s f….. s…., this place is s…. you’re s….. I’m not f……. signing it”.

The Operations Manager told the Fair Work Commission that, after requesting Mr Lawson to come downstairs, he said to Mr Lawson: “I am going to have to stand you down for a few days”.

The Contrasting Evidence

The Fair Work Commission preferred the Operations Manager’s evidence. A primary reason for this was that Environet Australia tried repeatedly to meet with Mr Lawson afterwards to get him back to work. However, Mr Lawson avoided such meetings.

Mr Lawson was also unreliable when questioned on his evidence. Mr Lawson claimed that he could not recall swearing on 13 September 2016. The Commission found that this was unlikely to be true, given Mr Lawson’s excitable nature.

The Fair Work Commission’s Decision

The Commission found that past disputes with Mr Lawson explained why he was asked to take his personal possessions with him and return his office key, as well as why his office email access was shut off. For example, there had been disputes between Mr Lawson and other employees about allegations that Mr Lawson’s personal items had been stolen and that his computer had been allegedly “hacked”. Environet Australia wanted to avoid repeats of such disputes. Further, asking Mr Lawson to return his office key was intended to protect Environet Australia in case Mr Lawson, in his erratic state, decided to take revenge on the office during the period he was to be stood down.

The Commission was, therefore, satisfied that there was no initiative on the part of Environet Australia which intended to terminate Mr Lawson’s employment or had the probable result of bringing the employment relationship to an end. Instead, the employment relationship was brought to an end on Mr Lawson’s initiative, given his repeated requests for a separation certificate and his refusal to communicate with his employer after the events of 13 September 2016. The conclusion was that the unfair dismissal claim must fail because Mr Lawson was not dismissed by Environet Australia within the meaning of s 386 of the Fair Work Act.

Lessons for Employers

Get advice on employment lawand be clear with employees and document all communications. There can easily be misunderstandings based on poor communication.

Lessons for Employees

Don’t abandon your work unless you have a definite termination notice is the best legal advice on employment law. Your abandonment may mean that you are ineligible to make an unfair dismissal claim if the Commission finds that you weren’t terminated by your employer but resigned on your own volition.

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