https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5579.htm

Introduction

Whilst on the surface, this was a win for the applicant (ie was two weeks pay less tax (say, $2,000) really worth the time and effort?

On the other hand, the respondent, because of a “technical” failing was subjected to the inconvenience and cost of defending such a trivial matter.

I my (humble) opinion, the applicant knew he was in trouble and his job was in jeopardy, and the Commission ought to have recognised this – or at least made the order for zero compensation.

Summary

Whilst not a big outcome for the applicant in this matter, not providing the applicant for the reasons why he was being sacked, until after the event was the defining factor in whether the dismissal was “fair” or “unfair”. This is despite the finding that the dismissal was valid.

Background

In this matter it was agreed from the outset that:

  • The Applicant commenced working for the Respondent on 15 July 2016 as an electronics assembler;
  • In March 2018 the Applicant was diagnosed with cancer and underwent a number of procedures in relation to this illness;
  • It took a number of weeks and months for the Applicant to recover from this illness and the associated procedures that were brought about by the illness;
  • Since March 2018 the Applicant had been off work for a large period of time as a consequence of this illness; and
  • The Applicant was terminated from his employment on 28 March 2019.

However, his honour was required to determine the “contested facts”, which were, the Applicant:

  • Was dismissed for a valid reason or reasons;
  • Received warnings regarding his work performance and conduct; and
  • Was afforded procedural fairness in the disciplinary and termination process.

The applicant was self-represented, whilst this honour gave permission for the respondent to represented by its lawyer.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

His honour found:

“In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”

“Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. ‘The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination’”.

Dismissal due to conduct

The Respondent submitted that the Applicant was dismissed for both performance and conduct issues and that there was a valid reason for the dismissal related to the Applicant’s conduct. According to the Respondent, the performance issues became conduct issues insofar as the Applicant did not follow reasonable and lawful instructions to improve his performance. The “final straw” so to speak, was the Applicant’s non-attendance at work on 27 March 2019. The following day, the Applicant’s employment was terminated summarily.

The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s conduct because he had not received any written warnings regarding his performance and that his absences from work were either authorised (medical leave) or unavoidable. The non-attendance at work on 27 March 2019 was, according to the Applicant, unavoidable, due to a lack of a vehicle and his impecuniosity to afford public transport.

With respect to the Applicant’s unauthorised absence from work on 27 March 2019, the evidence was not disputed by the parties. A text message, in Hebrew and not translated for the Commission, apparently confirmed the reasons the Applicant’s reason for not attending work on this day – being impecuniosity – and the Applicant confirmed this at the hearing.

Findings

His honour found:

  • On balance of probabilities, the Applicant was provided with a written warning on 14 September 2018 relating to his performance, reliability and conduct, which confirmed a number of verbal warnings regarding same.

  • On the balance of probabilities, the Applicant was provided with a written warning on 18 February 2019 regarding his conduct and not following a reasonable direction from management regarding the parking of his car at work, which confirmed a number of verbal warnings regarding same.

  • The Applicant’s absence from work on 27 March 2019 was unauthorised and without reason. The Applicant’s reasons for not attending work; namely his lack of vehicle and his impecuniosity, are not valid reasons to not attend for work. By way of commentary, financial stress impacts many members of the community. However, it is a fundamental and paramount duty of a permanent, full time employee that they have enough money to be able to afford the cost of transport to get to work. It is not an excuse to avoid work to simply say that you have no financial means of getting to work. I am satisfied that no warnings were needed regarding the Applicant’s conduct with respect to this reason so say that it was not a valid reason for dismissal, given that the Applicant had already been provided with warnings regarding his unauthorised absences from work.

His honour finding:

“…I find that there was a valid reason for the dismissal relating to the Applicant’s misconduct, and with respect to the performance issues, the Applicant’s failure to follow reasonable and lawful requests with respect to improving his performance in the workplace, especially with respect to safety concerns of the Respondent, and about following proper processes and procedures regarding absences, amounted to misconduct which constituted a further valid reason for termination”.

But (according to His Honour) there was fault in the way the dismissal was carried out

Whilst, the decision found that the punishment fit the crime (valid reason), the respondent’s failure to put the reasons to the applicant prior to the termination made the dismissal procedurally unfair.

In his honour’s words:

“Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit and plain and clear terms”

“The Applicant submitted that he was notified of the reason for his dismissal on the day of termination. During that termination meeting he was provided a termination letter that outlined the reasons for his dismissal after the termination had already occurred”.

Summary of Findings

  • The Applicant was not given an opportunity to respond to the reasons for his dismissal prior to the decision being made to terminate him.
  • Terminating someone’s employment for performance or conduct is a significant matter and employers have an obligation to ensure that not only is procedural fairness afforded to an employee that is going through a disciplinary process, possibly involving the termination of their employment, but to also ensure that procedural fairness is seen to be being afforded to an employee. The Respondent did not discharge either of these obligations and giving the Applicant a termination letter was a mere formality.

Compensation awarded to the applicant

As the applicant had found another job, his honour awarded a further two weeks’ pay (less tax) – two weeks had already been paid in lieu of notice.