Is it unfair dismissal if the company is on the brink of liquidation?
The Fair Work Commission (FWC) recently dealt with a worker’s complaint that she was unfairly dismissed when she started to complain about her underpayments.
She was a support worker at the employer’s facility for people with disabilities or particular needs. Her role involved attending clients’ homes and assisting them with their daily living tasks. The clients had varying forms of mental illness, and some had physical or intellectual disabilities.
In late April 2021, she received a warning from her employer following a client complaint. She said she “wanted an opportunity to respond to the allegation, as she had evidence and a witness” to defend her side, but despite the request, no opportunity was given, and she was told the warning “would stand.”
Later, a similar warning came, and she requested another opportunity to defend herself, but much like the first one, the employer did not give her a chance to explain.
Soon after, her hours were reduced to around 15 hours per week. She complained about the change in hours, but she remained unheard.
Additionally, she thought she was made full-time but was being paid as a casual despite working regular hours.
She claimed there were entitlements and other expenses she was “entitled to receive, but never did.” She complained about the employer’s inadequate payments and discovered that she was not the only employee allegedly underpaid.
According to records, another support worker “made numerous complaints about such matters without apparent success.”
In November, the worker, in this case, was issued with a notice of termination. The employer wrote:
“I refer to our numerous meetings we have had with you on countless occasions. During these meetings, we discussed breaches in confidentiality, missing case notes and missing progress reports. As discussed during the meeting, your conduct during that incident: you refused to carry out a lawful and reasonable instruction that was consistent with your contract of employment, and in the circumstances your continued employment during a notice period would be unreasonable. This includes the breaches of confidentiality, all of your missing case notes which are integral part of your job role and all missing progress reports.”
The worker said that, as far as having “numerous meetings,” there were none. She also said the “missing case notes related to the employer failing to pay staff to write them.”
The commission noted that the employer tried to acquire funds “by contacting companies with outstanding invoices” to “contacting companies to see if they can assist with business loans” but “with all coming to no luck.” At one point, the management also discussed “to look at having [the company] liquidated.”
The worker was then terminated, and the commission noted the reason “may well have been due to her demands for payment and the possible poor financial position of the employer to meet those obligations, and its obligations to other creditors.”
In its decision, the commission found the worker “was not given an opportunity to respond to the reasons for dismissal.”
It said that she was “warned” for not completing case notes, which was an essential part of her position, but that was only because the company “failed to pay employees to complete them.”
It added that she had not been “relevantly warned in any meaningful capacity about the putative reasons for dismissal.”
Thus, the commission said her dismissal was unjust and unfair. Consequently, it ordered the company to pay her compensation.
