CEO orders GM to call him daily: Is it serious misconduct if not followed?
The Fair Work Commission (FWC) recently dealt with a case involving allegations of unfair dismissal.
The dispute centered around a worker who claimed their termination was harsh, unjust, or unreasonable, while the employer denied these allegations.
The case highlighted several key issues in workplace relations, including the need for explicit instructions, appropriate warnings, and due process in termination decisions.
Background of the case
The worker, who had been employed as a general manager for nearly a year, was terminated from his position at an electronics and technology solutions company based in Arundel, Queensland.
The employer, the founder and CEO of the company, cited insubordination and failure to follow instructions as reasons for the dismissal.
The worker commenced employment on 21 February 2023, working from the employer's new Victorian facility. His annual salary at the time of termination was $100,000, plus a $235 per week vehicle and computer allowance.
The dispute arose from a series of events that began in December 2023. On 19 December, the employer telephoned the worker to address concerns about his performance and asked the worker to call him every day thereafter.
The worker did not call the next day, and subsequent communications via text messages and emails revealed a growing tension in their relationship.
The parties’ arguments
The employer maintained that he had given the worker a clear and lawful direction to call him daily. He viewed the worker's failure to do so as a deliberate act of insubordination.
The employer also cited concerns about the worker's performance in dealing with customer complaints.
In his evidence, the employer stated that on 6 February 2024, he sent an email to the worker reminding him of the request to call daily.
When the worker failed to acknowledge this in his response, the employer considered this to be serious misconduct justifying instant dismissal.
The worker disputed the employer's version of events. He argued that he was never given a formal direction to call daily and that he communicated with the employer as required in his role.
The worker also presented evidence of positive customer feedback to counter claims of poor performance. The worker's evidence included statements from three customers indicating their satisfaction with his level of support and customer service, which was uncontested by the employer.
Valid reason for dismissal?
The FWC found that there was not a valid reason for the dismissal. The Commission was not convinced that the employer's request for daily calls was communicated as a clear and unequivocal direction. The FWC noted:
"I do not accept [the employer's] request that the [worker] call him daily was a clear enough direction that the [worker] would have interpreted as a lawful direction he was required to comply with or face disciplinary action."
This finding highlights the importance of clear and explicit communication in workplace instructions.
The FWC also found significant deficiencies in the procedural aspects of the dismissal. The worker was not notified of the reason for his dismissal prior to the decision being made, nor was he given an opportunity to respond. The Commission stated:
"I am not satisfied that [the worker] was given an opportunity to respond to any reason related to his capacity or conduct."
The FWC noted that the worker was terminated by text message on 19 February 2024, with no prior warning or performance counselling.
In concluding that the dismissal was harsh, unjust, and unreasonable, the FWC emphasised several key points:
"I have determined that [the worker's] dismissal was harsh, unjust and unreasonable."
"If I had found there was a valid reason, I would have found the dismissal was harsh given [the worker's] age and because the employer's concerns with his conduct were not clearly and formally communicated to him or so serious as to constitute serious misconduct."
"If I had found there was a valid reason, I would also have found that the dismissal was unjust and unreasonable because [the worker] was not notified of the reason for dismissal and was not provided with an opportunity to respond prior to the final decision being made."
The FWC ordered the employer to pay the worker compensation of $29,999.99 gross plus superannuation of $3,299.99, to be paid within 14 days of the decision. This outcome underscores the potential financial consequences for employers who fail to follow proper procedures in termination cases.
The case serves as a reminder to employers of the need to follow due process, provide clear instructions, and offer opportunities for employees to respond before making termination decisions.
