Background

The West Australian Industrial Relations Commission (Commission) has found that whilst a small business owner ‘had the right to dismiss’ a ‘good and faithful’ employee on the grounds of ‘rising employment and food cost and financial affordability’, he exercised that right ‘so harshly or oppressively or unfairly against the [employee] as to amount to an abuse of that right’. The business owner explained that dismissing the award-winning employee and having junior staff work the vacant shifts, with the owner providing managerial input, would save him over $500 a week. This decision came after the employer offered the employee a supervisory role which she declined. Subsequently the employer gave the employee a letter at the end of a shift which stated that she was being terminated with 2 weeks’ notice, citing a review of the ‘business and staffing structure’.

The Decision

It was the Commission’s view that the business owner was ‘entitled to make the decision he did and was entitled to take the action that he did, but that he had to do it in a certain way and he had to do it in a way that was a lot fairer than the way in which he pursued it’. Consultation with the employee would have been courteous and giving a longer notice period would have been agreeable considering the employees strong performance with the business.

It was on these grounds the Commission found the dismissal had been unfair. Taking into consideration the achievements of the employee following their dismissal, and their success in finding alternate employment fairly promptly, coupled with the length of time the business owner would have taken had he ‘fairly’ ended their employment, the applicant was awarded four weeks of pay, with an additional payment for the emotional impact this situation had on her.

Lessons for Businesses

Although the business owner was not unlawful in their termination of the employee’s employment, it is important for businesses to ensure they consult with employees of any changes that are to take place in the business. This ensures a fair process is followed and reduces the risk of a successful claim against the business.

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 to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Swendy Huong, Graduate Workplace Relations Advice Line Advisor

Jessica Aufdemkampe and Thakkar Family Trust [2019] WAIRC 00240 (23 May 2019)