Abusive Resignation Stands

Taylor v AGAS National [2016] FWC 3435 (13 June 2016)

For not the first, and no doubt not the last, time, an employee has told an employer to do something anatomically impossible with their job – only to sheepishly turn up for a work a few days later, as if nothing had happened, hoping to just slide past any consequences that might flow from abusive behaviour.

And so it was for a luckless truck driver who also made the big mistake of confecting a story that he was sacked, when the employer produced hard evidence of its attempts to contact him and maintain a relationship.

The employer had sought to query the driver about a vehicular accident and the driver became abusive and argumentative, and eventually made the classic “shove your job” comment and left. He failed to front for work the next day and did not respond to four telephone calls made to him that afternoon and evening from a senior manager.

The next day, just before the driver’s normal start time, the employee sent a text message which simply said “will not be in”. In response to that text message, a manager made two unsuccessful phone calls to the driver and later the manager followed that up with two more text messages during the morning. Neither of these were responded to either.

The employee presented for work the following Monday as usual. He was told that his resignation had been accepted. He was no longer required.

Dealing with the evidence in his subsequent unfair dismissal claim, the FWC could not reconcile the employee’s version of events with the behaviour of the employer. Put succinctly, the FWC found that if the employer had been the initiating party to the termination, there would have been no need whatsoever for the repeated attempts to contact the driver to see what he was intending. It made no sense.

The FWC found that the driver was the architect of his own demise, had told the boss to shove his job, and despite that, he had been given a chance to smooth things over, but flatly refused to communicate. Instead he thought he could ignore the managers’ calls and texts and just turn up the next week and pretend everything was fine. That attitude cost him his job.