Why employers need to engage in FWC proceedings

In a recent case, the FWC considered an employer’s unsubstantiated allegation that led to an applicant’s summary dismissal.

The applicant worked as a disability support worker until her summary dismissal in December 2020. The applicant did not receive payment in lieu of notice, despite her employer promising this in the termination letter.

The termination letter alleged that the applicant had openly discussed the confidential personal and medical information of one of the employer’s clients. The employer submitted that such conduct could damage workplace morale, the health and safety of clients, and the employer’s trust and confidence in the applicant.

The applicant denied these allegations and lodged an unfair dismissal application under the Fair Work Act 2009 s 394. 

The Commission clarified that the test for capacity “is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.”

It also noted the employer’s failure to respond to the unfair dismissal application. As a result of the employer’s minimal participation in the proceedings, the applicant presented unchallenged evidence before the Commission.

The applicant stated that she was a regular support worker for the client mentioned in the termination letter. Throughout July and August 2020, the applicant’s team leader was absent from work due to a personal illness.

During that time, the applicant engaged in weekly “hand over” discussions with another support worker to exchange relevant information to ensure the client received adequate support and care.

Although these discussions involved communicating the client’s upcoming medical or personal appointments, the support workers did not speak about the client’s specific medical condition – the applicant did not have access to this information.

The Commission found it was “entirely appropriate in the circumstances” for the applicant to engage in these discussions with the other support worker and rejected the employer’s assertion that the discussions provided a sound, defensible or well-founded reason to terminate her employment.

Ultimately, the Commission found the applicant did not engage in the conduct alleged in her termination letter, leading to a finding that the dismissal was harsh, unjust and unreasonable.

The Commission ordered compensation of $7,540.57 less taxation to the applicant.

Key Takeaways:

• Employers who are involved in an unfair dismissal suit must engage in the proceedings. Failure to do so will likely have adverse effects on the employer