AN employee who told his manager to “get f….d”, walked off the job and then told his brother – who was the owner and managing director of the business – that he could not work with his manager any more has failed to convince the Victorian Magistrates Court that he was constructively dismissed.

The Facts

Terrance Parker, an employee then working for Cetel Telecommunications, had a verbal altercation with an operations manager over defective equipment, which concluded when Mr Parker told him to get f….d, said he was “not putting up with this crap”, and left the site.

After communications with the operations manager, the managing director of Cetel Telecommunications, also Mr Parker’s brother, interviewed several witnesses to the incident who confirmed the incident in question. The managing director contacted Mr Parker and said he did not wish to have him under employment any longer.

Mr Parker responded: “I don’t want to work with that snotty nose prick anyway and I will look for another job”. The managing director told the Fair Work Commission that he regarded Mr Parker’s statement as a resignation.

During the following weeks, Mr Parker pursued legal advice, indicating he had not resigned, but instead felt he had been unfairly dismissed

The Decision

Magistrate Simon Garnett found that the brother had resigned on the day he left the site.

He said that Mr Parker was in an agitated state and verbally abusive towards the operations manager, left the worksite despite being told not to by the operations manager and then resigned when he realised his brother was not supporting his position.

The Magistrate accepted the managing director’s evidence that he would have attempted to resolve the issues between his brother and the operations manager if given the opportunity, but the opportunity did not arise due to Mr Parker’s resignation.

The court rejected the employee’s argument that the incident amounted to a constructive dismissal, saying:

“Mr Parker’s decision to resign was not at the initiative of his brother. It was not his statement or his brother’s attitude to him as to what had occurred with [his manager] that was the principal contributing factor which led to the termination of employment. He made the decision that he did not want to work with ‘that snotty nose prick anyway’ and that he would ‘look for another job’. He terminated the employment relationship.”

Implications for Employers

In circumstances where an employee resigns in the heat of the moment without coercion or other factors relating to soundness of mind, the employer can reasonably assume that the resignation is at the initiation of the employee and that there is no suggestion that the employer has some way constructed the circumstances which forced the employee to resign, constituting constructive dismissal.

The other critical issue is that if the employee subsequently seeks to withdraw the resignation, the employer is under no obligation to accept the purported withdrawal. Managers and supervisors should be aware of this and not feel compelled to simply allow the withdrawal of the resignation.

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Case: Parker v Cetel Communications Pty Ltd, C12903337 (7 August 2013)