Background

The chef had been with the business for over two years when he was informed of his dismissal on 18 November 2018. The employer claimed to have given the employee “numerous verbal warnings over the years”, related to his performance, behaviour and fraudulent timekeeping, and that the dismissal was in accordance with the Small Business Fair Dismissal Code (the Code). The employee claimed he had never been made aware of these issues and as such, did not consider his job to be at risk.

On November 8 the employee contacted the owner to request to leave early the following day to obtain the results of a blood test. The employee then worked on November 12, however that evening experienced severe stomach pain and was admitted to the hospital. The employee’s wife contacted the owner on his behalf, notifying them of the employee’s hospitilisation and providing a medical certificate for November 13 - 16. Following his discharge from the hospital on November 16, the employee claimed he informed the owner of his intended return date of November 19. Conversely, the owner claimed she had not been able to make contact with the employee and sent a text on November 16 to ask when he would return to work. The owner stated in lieu of receiving a response, they considered the employee to have abandoned his employment and offered the role to another chef. The employee was notified of their dismissal on November 18 on a phone call where the owner explained he had been dismissed as he had not kept the business informed of his absence, and that he had been an unreliable employee.

The Decision

Whilst the business was a small business employer, and as such bound by the Code, the Commission found the employee’s dismissal did not align with the Code as there was no credible basis for immediately dismissing the employee. The Commission further concluded the dismissal process was absent of procedural fairness as the employee had not been provided with any identifiable warnings about their performance or conduct, was dismissed via the telephone and was not provided with formal documentation such as a termination letter. Moreover, adding to the absence of procedural fairness – the employee had not been given the opportunity to respond to the allegations, and nor the opportunity to explain his situation and the impact his illness may have had on his ability to work. Following his dismissal, the employee had unsuccessfully applied for two other positions, and further applications were impeded upon by ongoing medical treatment for pancreatic cancer. The employee did not seek reinstatement, and was awarded $18,200 in compensation.

Learnings

There can be costly repercussions for small businesses who fail to dismiss employees in accordance with the Small Business Fair Dismissal Code and the criteria concerning dismissal outlined in section 387 of the Fair Work Act which is the basis for determining whether a dismissal is unjust, unfair and unreasonable.

How we can assist

In our Advocacy and Representation Skills in the Fair Work Commission experienced consultants will share some of their secrets and experience to help you understand the process, from initial response to appeals process. Learn more about the types of claims the Fair Work Commission deals with and how to put your best foot forward to defend your business and keep costs down.

Written by Amy Fowlds, Graduate Workplace Relations Advice Line Advisor

Chanintorn Siri v Urban Orchard Food Pty Ltd [2019] FWC3177