Should 'cultural duty' trump employer's legal obligations to issue formal warnings?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claims he was unaware of his dismissal because of his employer’s alleged failure to formally communicate with him regarding his termination.
In its defence, the employer argued that because the worker was an older person of Chinese descent, he found it inappropriate to use plain and straightforward language to warn the worker of his dismissal.
At the date of his dismissal, the worker, aged 72, was a national sales manager for a noodle manufacturer in suburban Adelaide. The worker was first employed in 2006 and had been in service for the company for more than 16 years. Thus, he was considered the next most senior person after the general manager in the workplace.
Upon reviewing the performance of the business and its employees, the employer became concerned with the worker’s performance.
The employer alleged that the worker was “underperforming and making mistakes in a senior position that the business could not continue to afford being made,” the FWC noted.
It further argued that it could not afford to continue to employ the worker given the expense it could cause for the business.
On 9 January, the general manager asked the worker for a private discussion away from the business premises.
That same day, the employer also asked the worker to return the keys to the company car, which the worker followed. However, at that time, the worker was not asked to return the company-supplied mobile phone.
Meanwhile, on 12 January, the employer and worker had a text exchange wherein the employer said, “Ok, per our discussion on Monday, you don’t need to come in anymore” to which the worker replied, “Are you dismissing me?” eliciting no immediate response from the employer.
Two days later, the worker followed up on his question, and the employer responded with, “We did discuss on Monday morning, in detail, that your role is reduced to an honorary role, that only need us to meet once or twice a month. You said that you can’t be at home, so you welcome to come in, but you not required to come.”
When the worker again asked if he was still employed, the employer did not reply. Hence, the worker claimed that he was not issued any formal warning, either oral or written, that he was at risk of being dismissed from work.
Meanwhile, the employer argued that respect for elders in the Chinese culture meant that it was unfitting to use formal language or communication towards the older worker, most especially because it was a discussion of his imminent dismissal.
Ultimately, the Commission found that the employer had valid reasons for the worker’s dismissal —the financial pressures on the business and the underperformance of the worker.
However, it found that the worker’s dismissal was harsh and unfair. The Commission noted that while the employer had valid reasons for the worker’s dismissal, the worker was not afforded procedural fairness.
The Commission said that while it recognized the desire of the employer to respect the cultural norms, “the obligations under Australian law, including to communicate important matters concerning a person’s employment directly and clearly, do not make an exception for cryptic, riddled or inferential communication no matter how well intentioned or culturally awkward.”
“Some things need to be clearly communicated and the termination of one’s employment is one such matter,” it added.
Hence, the FWC ordered an issue of compensation instead of reinstatement to the worker amounting to $2,000 less tax plus the applicable superannuation percentage payable on earnings on such a sum.
