Unfair Dismissal Button
News 16 January 2020

Appalling termination process results in $3,000 remedy for claim lodged months late

A worker who resigned after being ‘stood down without pay for an extended time’ has lodged a successful unfair dismissal claim with the Fair Work Commission (the “Commission”). The Commission found the business had dismissed the worker months prior to her resignation and “totally failed” to communicate this to her.

Overview of facts

The matter began in August 2018 when a retail business raised concerns with the worker over multiple issues, including the suspected theft of store merchandise. The worker denied the allegations, claiming she had recorded her purchases on the end of day statements. On 12 August, a few days after the allegations were made, the business discovered the software on their store computer had been modified leading to sales data being erased. The file history showed the software had been modified the previous evening outside of operating hours. Security footage revealed the worker and one of her colleagues had entered the business at the time of the incident. This led the business to infer that the worker, who had access to the computer, was involved in deleting the files.

On 14 August, when the worker turned up for her next shift, she was barred from entering the business and discovered the locks had been changed. Later that day the business informed her, in a 9-minute phone call that she was the subject of a police investigation and told not to return to work. The business contended at this point the worker had been summarily dismissed. The worker, however, argued she had only been stood down whilst the police investigation was underway. During the investigation the worker questioned the business on her return to work and whether she would receive payment for being stood down, but her correspondence was unanswered.

On the 12 December, after months of no payment, the worker resigned, stating she had been left with “no choice” and subsequently lodged a claim for an unfair dismissal. The business argued the worker had been dismissed in August and her application, lodged in December, was outside of the 21-day timeframe. They also submitted that the dismissal was not harsh, unjust or unreasonable.

The Decision

The Commission found it more probable than not the termination had occurred in August. However, in reaching this decision it acknowledged the “appalling” manner in which the worker’s termination had been handled. Ultimately, an extension of time was granted, with the Commission citing the “total failure” of the business to communicate the worker’s termination, as a reasonable reason for the delay.

The Commission found the worker had not provided a convincing reason for being in the business out of work hours, nor were they convinced the computer had coincidently malfunctioned while she was there. Therefore there was a valid reason for dismissal. However, the worker was not afforded proper procedural fairness. The brief phone call did not comply with notification requirements for dismissal nor was the worker provided an opportunity to respond to the serious allegations against her. The Commission deemed the dismissal unfair and ordered the worker be compensated $3,161.60 for lost wages.

Lessons from this case

When reaching a decision, the Fair Work Commission noted “it was evident the business had formed a conclusion about the [worker’s] conduct” before they had spoken to her. The termination process was so unreasonable the Commission weighed this in favor of granting an extension of time as a “failure to exercise the discretion would allow the [business] to benefit from its own unfair conduct”. In short, the “totally unreasonable manner” in which the termination was handled, was reason enough to grant an extension of time. This also became a factor in the success of the claim, despite the reasonable belief the worker was involved in the deletion of company software.

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals course to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Amina Abdulle, Graduate Workplace Relations Advice Line Advisor.

[2019] FWC 8673

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