ERA: Is it unjustified dismissal?
The Employment Relations Authority (ERA) recently dealt with an employment relationship problem between a worker and his former employer, a trucking company based in Huntly.
The worker claimed he was unjustifiably dismissed and sought personal grievance remedies, as well as wage arrears arising from the employer's failure to provide him with the hours of work promised under his employment agreement, pay wages in lieu of notice, and pay holiday pay arrears.
The worker, who had many years of experience in the trucking industry, was approached by the employer in late 2022 with a job offer that included a higher rate of remuneration.
The worker accepted the offer and signed a written employment agreement prior to his start date of 19 December 2022. However, despite repeated requests, the employer failed to provide the worker with a signed copy of the agreement.
The unsigned agreement, which the worker received by email, recorded his position as a Class 4 driver, an hourly wage of $27.00, and a guarantee of 30 hours of work per week. The ERA inferred from this that the employer had employed the worker on the basis that he was guaranteed 30 hours of work per week.
90-day trial provision
According to records, the intended employment agreement contained a 90-day trial provision, which stated that either party could end the agreement by giving two weeks' notice before the trial period ended.
Despite this provision, the employer did not rely on the trial period when dismissing the worker.
The ERA found that the employer did not receive any notice of his dismissal, nor did the employer provide him with wages in lieu of the two weeks' notice.
The dismissal process
The worker's evidence revealed that the employer had informed him of a break for the Christmas period, with work expected to resume on 4 January 2023.
However, the worker heard nothing from the company and contacted the employer on 9 January 2024 to ask when he could recommence work. The employer replied that there was no work until 16 January 2024.
The worker had not received any pay due to the lack of work, and a discussion about his wages on 10 January 2024 led to the employer's partner advising him that he was not entitled to any pay or wage arrears.
The situation escalated when the worker did not attend a barbeque organised by the employer, as he had not been told of the start time or whether the work was confirmed.
On 17 January 2024, the employer sent the worker a text message expressing his disappointment and stating, "I think its best we call it quits… I not in the business to give away money I going to [take] the trucks and the Ute to turners and sell them I am over it now."
The worker attempted to explain the situation, but the employer's partner threatened police involvement if the worker did not return the vehicle immediately.
Unjustifiable dismissal
The ERA found that the employer had failed to comply with any of the minimum procedural fairness tests under the Act when terminating the worker's employment.
The dismissal was abrupt, and the worker had no practical opportunity to obtain representation or have any input into the process prior to the decision to dismiss him.
The ERA noted that the employer "failed to raise its concerns with [the worker] in breach of s 103A(3)(b) of the Act" and "failed to give [the worker] any opportunity, much less a reasonable opportunity, to respond to its concerns in breach of s 103A(3)(c) of the Act."
The worker was simply informed of his summary dismissal on 17 January 2024, after the employer had made its decision.
The ERA concluded that the employer's failure to meet any of the minimum procedural fairness tests in s 103A(3) or comply with the obligations under s 4(1A)(c) of the Act rendered the worker's dismissal unjustifiable.
The decision stated, "[The employer’s] actions, and how it acted, were not consistent with what a fair and reasonable employer could have done in all the circumstances at the time of [the worker's] dismissal."
The Authority reminded employers of the importance of following proper procedures and adhering to the minimum procedural fairness tests set out in the Act when dismissing an employee. Consequently, it ordered the employer to pay compensation.
