Swearing and intimidation leads to constructive dismissal finding

What happened in this case

In a recent case, an employee who worked as an electrician for a small building business in Melbourne made an application to the FWC to deal with a dismissal dispute.

After just a few months on the job, the company director began raising performance concerns which included the employee using his phone during work and leaving the site for religious prayers without advising management.

In a key meeting in November 2024, the director confronted the employee and used highly aggressive and inappropriate language. He accused him of being deceitful and compared his actions to serious misconduct such as theft and dishonesty. The employee secretly recorded the meeting and took personal leave soon after. He resigned citing mental health reasons, bullying, and safety concerns.

What did the Fair Work Commission decide?

Commissioner Susie Allison ruled that the employee was constructively dismissed, meaning he was forced to resign because of the director’s behaviour.

While the director may not have intended to push him out, the tone, swearing and aggressive manner were not appropriate in any workplace, even in construction. The Commissioner found that the employee had no real choice but to resign given the impact on his wellbeing. The case is now progressing to mediation to determine possible remedies or compensation.

What does this mean for you?

This decision clarifies how inappropriate workplace behaviour is viewed, particularly in high-pressure environments like construction sites. What was once considered part of the culture may now carry serious legal consequences.

The decision also reiterates, that employees:

• do not need to tolerate abuse or bullying;
• may be able to claim constructive dismissal if forced to resign; and
• can report unsafe or hostile work environments to the Fair Work Commission or SafeWork.

Some key learnings if you engage employees:

• treat performance concerns professionally, not aggressively;
• avoid language or behaviour that could be seen as intimidating;
• understand that power imbalances can affect how your conduct is received;
• keep records of performance conversations and offer support where needed; and
• follow a fair and appropriate termination process.

You should also be aware of your obligations under WHS laws regarding psychosocial hazards. For practical guidance, see HIA’s case study on managing a psychosocial incident.

To find out more, contact HIA's Contracts and Compliance team

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The above is intended to provide general information in summary form. The content does not constitute specific advice and should not be relied upon as such. Formal advice should be sought by members and customers with respect to particular matters before taking action.