In this matter the SP decided that even if the procedures had been followed, the result would not have differed – that is, the applicant’s employment would have ended. I believe this to be a departure from the usual trend that even if a valid reason was determined for the dismissal (as in this matter), procedural fairness must be applied.
Ms Rani performed duties as a restaurant manager at the employer’s place of business in Mackay, Queensland from 21 September 2013 until her dismissal on 4 March 2015.
The reasons given for Ms Rani’s dismissal were set out in writing and handed to her at a meeting conducted on 4 March 2015:
“I am writing to you about the termination of your employment […] due to the following reasons:
- Being late to work on numerous occasions including today.
- Have failed to provide a weekly stock take reporting as requested by the owner of the franchise. The owner had to come into its stock take on several occasions.
- Weekly stock take recently were only down on 15 February 2015 and 1 February 2015.
Regular customers have also brought to the attention that you had mentioned to them the owners inability to order products and showing a “no care attitude” towards the business by them.
- Was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.
- Caused a serious and imminent risk to the reputation, liability or profitability of the employer’s business in that as a lot of business has been lost because of the comments made to customers, resulting in loss of trade.
We consider that your actions constitute serious misconduct warranting dismissal.”
The SP concluded that:
“The employer had a sound, defensible and reasonable basis – and thus a valid reason – for the dismissal of Ms Rani from her employment as a restaurant manager. Ms Rani could not be relied upon to perform critical roles as a manager and her conduct had been less on occasions than might reasonably be expected by her employer.
“Ms Rani, however, was not accorded the procedural opportunities to defend her position that an employee ordinarily would anticipate under the Act: she was not notified of her dismissal in advance nor provided an opportunity to respond to the conduct and performance issues that were relied upon for her dismissal.
“That said, when all the circumstances of this matter are taken into account, I do not consider that the result would have been any different had Ms Rani been able to exercise her rights in relation to such procedural opportunities.
“Given my conclusion in this regard, Ms Rani’s application … is dismissed for reasons that her dismissal was not harsh, unjust or unreasonable.”
Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:
- General HR and IR advisory service.
- Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
- Workplace investigations and mediations.
- Policies and procedures.
- Discipline & Termination.
- People Audits (are you at risk of prosecution?).
- Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
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Contact Greg on 0438 906 050 or mailto: email@example.com.