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Employee threatened with violence was not forced to resign: FWC

By Portner Press on May 17th, 2019
  1. Termination of Employment
  2. Unfair Dismissal

An employee who maintained he had no choice but to resign after a manager threatened to take his liver was told by the Fair Work Commission (FWC) he left his employment of his own accord.

The incident occurred after the manager heard loud laughter coming from the lunchroom and thought that people were laughing at him.

The employee said that when he left the lunchroom, the manager came close to his face and pointed to his liver and quietly uttered “I know what you f—ing said in the lunchroom, next time I take your liver”.

A second exchange then took place when the manager was walking to his car. The manager told the FWC the employee asked him what he was doing there, which offended him.

The manager, whose first language is Russian, claimed he responded by saying “If you ask me again, I show where your liver [sic]”.

The employee submitted he was very upset by the event and feared for his life and safety, and his family’s safety, as the manager had access to his home address.

The employee notified the company’s office manager and health and safety coordinator that he had been threatened by the manager and demanded that immediate disciplinary action be taken against him.

She told him that the company could not take any action until the incident had been investigated, but assured him that his complaint would be taken seriously and she would look into it.

A short time later, the office manager called the employee back to inform him that the company was investigating the incident and suggested that he leave for the day. In this conversation the employee told her that he intended to resign. She said that this would be his choice.

Later that day, the company’s chief executive officer and a senior manager who took over the investigation determined that the manager had behaved inappropriately towards the employee and suspended him for one week without pay.

They however believed that the manager’s actions did not present any actual threat to the employee’s safety.

Employee got ahead of himself

The employee didn’t show up for work the following Monday, only messaging the office manager at 4:52pm, stating that he had taken the day off sick. He attached a medical certificate for two days’ leave.

In this message, he also stated:

“I am writing to inform you of my resignation … I am unable to continue to work for [the company] as I believe that [the company] is not providing me with a safe place of work. I am giving 2 weeks’ notice and intend to finish on Friday the 5th October. As the General Manager … has threatened me, for my own safety, may I please ask that [the manager] does not come to [the worksite] whilst I am there.”

The next day the office manager sent the following response:

“Given the circumstances, we have decided it best that you don’t come to work during your notice period and instead be paid in full in lieu of that notice. Any accrued entitlements will be made in the next pay run on 11th October 2018. The incident involving [the manager] has been taken very seriously and he is currently suspended until further notice. Would you please make arrangements to return all company property prior to 5th October 2018.”

FWC says manager’s threat was lost in translation

After reviewing evidence presented by the manager, FWC Deputy President Alan Colman concluded that the threat was merely “akin to a throw-away line, such as ‘I’ll knock your head off”.

“I appreciate that [the manager’s] reference to [the employee’s] liver is unusual in the ear of a native English-speaking person, and carries perhaps a somewhat sinister tone.

“But I do not accept that it could reasonably be thought that [the manager] was going to harm [the employee], let alone [his] family,” he said.

The Deputy President also questioned the employee’s recollection of what was said, preferring the manager’s evidence.

“I find that the words spoken … were ‘I show where your liver’ [sic]. These are the precise words that [the manager] recited twice in his evidence, in the same ungrammatical formulation.

“This evidence is consistent with [the manager’s] brief written statement, in which he said that he had used the words ‘I’ll show where your liver is’.

“Although worded slightly different, the substance of the written statement is also about showing [the employee] where his liver is, not taking his liver.

“By contrast [the employee’s] account of the particular words … used was not consistent.

“[The employee’s] unfair dismissal application stated that the words [the manager] used were that he would ‘cut out [his] liver’. Then in his oral evidence, [the employee] said that [the manager] used the words ‘I’ll take your liver’ or ‘I take your liver.’

“Further, in my view [the manager’s] account of the words he used is consistent with [the employee’s] evidence, which I accept, that [the manager] pointed to his liver.

“Such an action could logically accompany a statement about ‘showing’ [the employee] where his liver was. [The manager] said that he did not make this gesture, but I do not consider this to count against his credit. A detail such as this might easily be forgotten.

Employee was not forced to resign

“Whatever misgivings [the employee] might have had about how seriously the company would take his complaint, they were plainly unfounded,” Deputy President Colman said.

“The company took immediate action to investigate his complaint and took quick and appropriate disciplinary action against [the manager].

“Less than two full working days elapsed between [the employee’s] exchange with [the director] and the email containing his resignation. It was, on any view, a hasty resignation.

“I note in this connection that [the employee] did not contend that he resigned in the heat of the moment. His case was that he resigned because he was forced to do so.”

Deputy President Colman noted that the employee told the employer that he wished to resign while the incident was still being investigated.

“The fact that [the employee] was flagging an intention to resign at such an early stage supports the company’s contention that he simply wished to resign,” he said.

“[The employee’s] resignation was of his own volition.”

The employee’s unfair dismissal application was dismissed

How would you respond if a similar incident occurred in your organisation?

Do you know what steps you would need to take?

Find out in the following chapters of the Employment Law Practical Handbook:

F1 Fair Work Commission

H3 Misconduct

H5 Human Resources Risks and Liabilities

R3 Resignation

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