Following the dismissal of an employee mistakenly thought to be in her probation period the Fair Work Commission (Commission) held businesses with over 40 employees are “large enough to warrant a HR Manager and a HR Officer” and it is “expected that such employees would have some expertise in dealing with matters associated with the management and termination of employment.”
The employee, a kitchen worker, began working for the community services business on a 10 week ‘work for the dole’ program before being offered casual employment in April 2016. On 4 July 2016, the employee was offered and accepted a permanent part-time role. Following an incident on 11 November 2016 and “in addition to previous conduct” issues namely an incident occurring on 27 July 2016, the Chief Operating Officer (COO) dismissed the employee.
During the Commission hearing different accounts of the incidents were presented. The employee claimed she lodged a complaint with HR as a result of the 27 July 2016 incident which resulted in a meeting being held on 16 August between the employee, her supervisors and HR. The intention of the meeting was disputed. The employer argued the meeting was a performance review conducted as part of her probationary period and as a result she “understood what was being put to her” and “agreed to change her behaviour”. However the employee believed the meeting was to address the complaint she lodged and to ‘re-set the relationship’ between herself and her supervisor. When considering the meeting the Commissioner noted “I am not convinced that the meeting of 16 August 2016 between [the parties] properly closed off [the employee’s] grievances. It is certainly surprising that what apparently started as an investigation into complaints ….resulted in a warning to her the next day.”
On 11 November 2016, a second incident occurred between the employee and her supervisor. Another supervisor intervened and reported hearing raised voices. After hearing the report and speaking internally, on 28 November 2017 the COO told the employee to gather her belongings and attend a meeting. In that meeting the employee was told her employment was terminated.
Having considered the evidence the Commissioner stated “Whilst I am satisfied the incidents of 27 July 2016 and 11 November 2016 did occur there is nothing to suggest [the employer] provided a valid reason for dismissal.” The Commissioner also considered the supervisors contributed to the escalation of the issues and as such “blame should not be laid at the feet of the employee”.
Whilst the Commissioner was aware the COO was acting under the misapprehension the employee did not have access to the unfair dismissal jurisdiction on the basis the employee’s previous casual engagement would not count towards the required period of service, it was noted “procedural fairness is not something that comes with length of service. Any employee is entitled to know the standards against which they are being measured, how they might be failing to meet these standards and generally….given an opportunity to improve to the level required prior to a decision being taken”
Based on the evidence presented by both parties, the Commissioner found “no valid reason for the dismissal”, and even if there had been, the “lack of procedural fairness would… find her dismissal to be harsh”. Reinstatement was deemed to be inappropriate, and compensation is yet to be determined.
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Written by Megan Wood
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