Although it may seem there is a clear reason to terminate an employee, it’s not always the case. If an employee believes they have been unfairly dismissed by their employer, it’s up to the Fair Work Commission to decide if the termination was harsh, unjust or unreasonable.
So what does unfair dismissal look like?
Here are a few examples that have been brought before the Fair Work Commission.
Example 1 – Sexually explicit social media posts
Late last year a Victorian worker was dismissed because he posted a video on Facebook and tagged 2 colleagues. The video and comment accompanying the video were sexually explicit. When one of his colleagues took offence and reported the incident, the employer sacked the worker for serious misconduct.
The outcome
When the Fair Work Commissioner heard the case, the dismissed worker claimed (among other things) he had a history of sharing “blokey, crass and immature” posts with his colleagues and they were not harmed by his actions.
The Commissioner found the dismissed worker had exposed his colleagues to humiliation and ridicule at work which could negatively impact on their health and safety BUT the decision to sack him was disproportionate to his misconduct. The employer was required to pay compensation to the dismissed worker.
Example 2 – Worker’s actions interpreted as a resignation
A worker abruptly walked out of the office mid-way through a work day shouting “Don’t try to stop me. It’s finished!” The employer tried to contact the worker several times over the next few days but there was no response. After 5 days, the employer sent the worker an email stating the worker’s employment had been terminated.
The outcome
The worker claimed unfair dismissal seeking 6 months’ pay as compensation. He told the Fair Work Commission work pressures had exacerbated his pre-existing mental health issues. When he left the office, he was suffering a panic attack and believed he was in imminent danger.
The Commissioner accepted the worker’s evidence and diagnosis of a mental health condition and said the employer should have had “some awareness” the worker’s behaviour was unusual or abnormal. The Commissioner also found the employer based its decision on inference rather than facts.
Rather than assuming the worker had resigned, the employer should have advised the employee that unless they heard from him by a certain date, they would accept he had resigned and proceed accordingly.
Example 3 – Performance issues hiding mental health conditions
One worker was constantly late or absent from work and her performance was well below expectations. Frustrated by her inability to achieve her weekly KPIs, the employer dismissed the worker for poor performance.
The outcome
The worker took the matter to the Fair Work Commission stating she was having ongoing mental health problems. She was attending regular medical appointments which meant she arrived late for work some days. Her treating physicians were having difficulty helping her manage her condition so she required multiple days off work.
The Fair Work Commissioner found mental health conditions need to be treated in the same way as other chronic conditions requiring regular and ongoing treatment. The employer failed to follow due process or consult with the worker about the reasons for her absences and performance issues.
The employer was required to pay compensation to the worker for lost wages.
Make sure you follow due process
As these examples demonstrate, cases of unfair dismissal are not always clear cut. Employers are legally required to follow the processes set out in the Fair Work Act – even when they believe they have strong reasons for dismissing an employee.
End2End Business Solutions helps business owners understand the processes required to terminate a worker. Their team of experts are skilled at uncovering the causes of poor attendance or poor performance and provide employers with appropriate advice to manage the situation.
For help and support to effectively manage your staff, contact End2End today on 02 8977 4002.