ERA case: Worker claims dismissal unjustly based on workplace 'comments'
The Employment Relations Authority recently dealt with a case involving an employment dispute where a worker claimed that he was dismissed over his colleagues’ comments against him. He said he was not given an opportunity to defend his side.
The worker then alleged unjustifiable dismissal and sought compensatory remedies, while the employer contended that the worker's employment was casual and terminated due to performance concerns.
Mustafa Hussaini was employed by Real Bread Limited (R B Ltd) as a delivery driver/merchandiser for a brief period. Hussaini raised concerns about being unjustly dismissed and pursued legal action against R B Ltd.
R B Ltd claimed that Hussaini's employment was casual, with no expectation of ongoing work, and cited performance issues as the reason for not engaging him further.
Hussaini approached the employer inquiring about a delivery driver job, which led to an informal interview. However, discrepancies arose regarding the nature of the job and the terms discussed during the meeting.
According to records, after a trial period, during which Hussaini accompanied the employer on a delivery round, concerns emerged about his suitability for the role.
Negative feedback from colleagues and background checks further contributed to the employer's decision not to continue the engagement.
The employer informed Hussaini of the decision not to proceed with his employment through a phone call. From the evidence, the Authority found that “Hussaini was judged on his co-worker’s assessment of suitability for the job during a two-day period.”
“In addition, [the employer] sought comment from customers and harboured concerns about Hussaini’s past. None of these matters were put to Hussaini for comment. Nor was the true reasoning communicated to Hussaini for his dismissal – he was effectively misled to believe another person would be appointed instead,” the decision said.
Hussaini also gave evidence of the impact of the abrupt dismissal and the uncertainty it created at a tough time to find immediate alternative employment and pay living costs.
The ERA determined that while Hussaini's employment was casual, the employer failed to adhere to good faith and fair dealing during the worker’s brief period of employment.
“Even though Hussaini was a casual employee there was still an obligation to deal with him in good faith including treating him fairly and being responsive and communicative (that impliedly includes placing a person on notice that performance issues may impact ongoing employment),” it said.
Consequently, Hussaini was found to be unjustifiably disadvantaged and entitled to consideration for remedies.
