The case sheds some light on a common legal issue
A valid reason is a key factor when dismissing an employee. However, the following case study outlines why this alone is not enough to avoid an unfair dismissal suit. The applicant worked as a building cadet with major construction company Hansen Yuncken Pty Ltd and was assigned to a site in the Sydney suburb of Minto.
In light of COVID-19 and concerns related to travelling on public transport to the site, the applicant accepted his employer’s offer to undertake a period of unpaid leave. After almost two months of unpaid leave, the applicant met with his employer to clarify his return to work. During this meeting, the applicant indicated he would continue unpaid leave for another month or two. His employer asserted it was made clear to the applicant that this proposition was unacceptable.
Following an email sent by the applicant, in which he clarified the continuance of his unpaid leave, the employer terminated his employment. In lieu of notice, the employer indicated that the applicant would be paid one month’s remuneration. The applicant contended that his dismissal was procedurally unfair. Conversely, the employer submitted that he had provided the applicant with a reasonable direction to return to work, with which the applicant failed to comply. The respondent also stressed the fact that ‘a business could not function if an employee was capable of nominating at his or her discretion when they would return from unpaid leave’.
The Commission found that the applicant had a mistaken and naïve belief that he could determine when he would return to work. Despite this, it was found the applicant failed to comply with his employer’s reasonable direction to return to work, thus providing a valid reason for dismissal.
However, the Commission also noted areas in which the dismissal ‘denied the applicant natural justice’, especially given the size of, and resources available to, the business.
The Commission criticised the employer for dismissing the applicant by email communication, rather than in person, describing this as ‘unnecessarily callous and unreasonable’. Moreover, it found that dismissal without first advising the applicant was a significant procedural error. The Commission assessed the employer’s valid reason against the procedural shortfalls of the dismissal, finding the latter rendered the dismissal harsh and unjust. Compensation of $2,583 was ordered to the applicant.
Key Takeaways for HR:
- Employers should correct misunderstandings regarding employment and leave entitlements with employees
- Despite substantive reasons, dismissals must always follow proper procedure to avoid breaching the Fair Work Act ss 385-7
