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Procedural fairness – unfair dismissal

Posted on : Thursday, 10 May 2018

Another decision involving a small business identifies the importance of applying procedural fairness. In this case, the employee was a short-term employee but at the same time was entitled to procedural fairness which was denied him. The Fair Work Commission (FWC) found that the dismissal was harsh.

 

The FWC considered that "the denial of procedural fairness … was so significant that … it outweighs the valid reason for dismissal". The FWC added that "the absence of a dedicate HR management adversely affected the procedures it followed in effecting the dismissal".

 

The case

 

Before a single member of the FWC, the applicant claimed that his dismissal was unfair because he had been terminated without warning and without notice of alleged client complaints which were never investigated. Nor was he given any opportunity to respond or take steps necessary to keep his job.

 

The employee had been employed by the Company for approximately six months (February 2017). The employee had a psychiatric condition as well as a child with special needs.

 

Concerns had emerged, according to client complaints, regarding:

 

  • The employee's manner including 'unprofessional' handling of money;
  • Manner of conversation with customers in particular premises;
  • Exposure of money movements in front of customers; and
  • The employee did not check alerted run sheets which resulted in him attending premises that did not want him there.

 

In early September during a staff meeting, no issue was raised with the employee about his work conduct or performance. A complaint in mid-September about the employee's talking too long with employees and other inter-twined matters was accepted at face value and did not result in any investigation. The employee then did not receive his regular runs.

 

The employee emailed the company seeking advice or feedback about his position as his hours had been reduced to zero without any communication. On same day, the company responded that it was terminating his employment and for the first time provided him with a summary of client complaints including alleged confidentiality breach. The employee responded with an apology and asked for re-consideration and opportunity to improve. The company did not reconsider.

 

The FWC decided:


  • Valid reason: there was a valid reason;
  • Reason for dismissal: no notification provided - in favour of finding unfair dismissal;
  • Opportunity to respond: no opportunity given - in favour of finding unfair dismissal;
  • Warning about unsatisfactory performance - no warnings provided - in favour of finding unfair dismissal;
  • Size of business: at the time - 20 employees - but limited experience and so adversely affected the procedures; and
  • Compensation: attempts to find alternate employment unsuccessful - no reinstatement due to change in Company business model (compensation - $7,408.80 gross).

 

A summary of this decision can be found on the Workplace Relations document library.