Worker was unfairly dismissed after FWC found informal chats were used against them
After a manager at a manufacturing company filed an unfair dismissal claim for alleged misconduct, an employment lawyer told HRD employers often make common mistakes during these types of hearings.
“Something I’ve experienced a few times that comes up is that when you raise an issue with an employee, even it’s an informal discussion, and you move on from it – that discounts your ability to rely upon that particular breach at a later stage,” said Principal at Kelly Workplace Lawyers, Joseph Kelly.
“It’s that Double Indemnity process…you can’t keep that in the back pocket for future reference and you think you have enough evidence to terminate their employment.”
The case was heard by the Fair Work Commission (FWC) and examined whether the termination was harsh, unjust, or unreasonable under the Fair Work Act 2009 (Cth). The manager contended that his dismissal occurred without a proper investigation and that the employer failed to provide a reasonable chance to respond.
The manager alleged that issues had been informally resolved and that the company had not clearly communicated the warnings.
“Another issue with hearings like this is procedural fairness. An employee has to completely and unambiguously understand the allegations against them and to be able to respond. Informal chats, sometimes, don’t have all the information. You have to ask yourself ‘do I have enough evidence to warrant an employment sanction?’ If yes, maybe informal chats aren’t the way to go,” Kelly noted.
The FWC ruled the dismissal was unfair.
With the workplace everchanging across a number of metrics – including skills, qualifications, and working environment – the ways in which employees are governed needs to remain consistent, according to Kelly.
“When considering dismissal, employers have to think of two things. One, is there a valid reason for the termination? Two, is the termination harsh, unjust or unreasonable? A lot of employers claim to have a zero tolerance to certain things, but if these informal chats are going on behind the scenes and some people are being let off – a termination would be unjust.”
Kelly told HRD there needs to be a clear framework in place for employers to ensure that they are treating each individual case the same way and not relying on a build-up of evidence.
“There has to be a case of drawing a line in the sand and moving on - because you've made that election as something to move on from you've got to fulfill your end in that bargain and just move on from it and not try and bring it up later,” Kelly added.
Kelly outlined the issues involved in a misconduct hearing as ‘difficult’ because of the need to the decision to adhere to certain criteria.
“How does the employer convince a decision-maker, if you're a fair work tribunal, that the employee had a right to respond to the allegations if they might have been put to that employee in very vague terms - without the employee knowing that their employment might be at risk. So I think that's the other big danger of going about things that way.”
