The facts

The business was a restaurant owned and operated by a husband and wife who employed a total of eight people. After becoming aware of the 457-visa program which would allow them to sponsor a worker from overseas, the employers engaged a migration agent to recruit a cook from China.

Under the 457-visa program, an applicant employee is required to hold the relevant skills to perform the occupation advertised and have a minimum level of English proficiency. To satisfy these requirements, the applicant employee completed and passed an English language test and a skills test. The visa was approved, and the employee began work with the employer in Australia.

During the course of employment, the employer became aware of performance issues. The employer claimed to have received numerous online and verbal complaints about meals prepared by the employee for which the employee was informally disciplined. Furthermore, during employment, the employee revealed an imposter sat the English test in the name of the employee.

Whilst the employer informally expressed concern, the employee continued to work for a further six months before being dismissed on performance grounds and for fabricating the results of the English test. The employee made an unfair dismissal claim.

The Decision

To determine whether the employee was unfairly dismissed, the Fair Work Commission (the “Commission”) must determine whether the employer adhered to the Small Business Fair Dismissal Code (“Code”).

The employee was not summarily dismissed, as such the Commission applied the “Other Dismissal” provision of the Code which requires an employer to:

• Warn the employee dismissal was a possibility
• Give the employee an opportunity to respond to the warning
• Give the employee the opportunity to improve
• Have a valid reason for dismissal

The Commission first considered whether there was a valid reason and considered each of the reasons listed by the employer including performance, fraudulent behaviour and secret recordings.

Performance

The Commission considered witness evidence and had concerns about reliability. That said, the Commission was satisfied there were occasional specific complaints, such as food being undercooked or not being appropriately presented. The Commission also accepted that on each occasion, the employee was informally disciplined but was not issued with a formal verbal or written warning.

Ultimately, the Commission was not satisfied the instances of underperformance were serious or frequent enough to amount to a valid reason for dismissal.

Fraudulence

The Commission considered the employee’s fraudulent behaviour concerning their English language test and lack of English language proficiency.

The Commission found the misrepresentation by the employee regarding their English language ability was not a valid reason for dismissal. The Commission accepted it was the employer’s preference for the employee to speak English, however, did not consider it was a requirement for employment. This was further supported by the employee’s job description which did not contain any requirements for English language proficiency.

The Commission noted that ordinarily, fraud would amount to serious misconduct and would warrant dismissal. However, given the employer did not take any action after becoming aware of the fraud it was not a valid reason in the circumstances.

Secret recordings

After the dismissal, the employer became aware the employee had obtained various recordings secretly of discussions between the employee and employers. The employee recorded those conversations without the knowledge or consent of the employer.

During the hearing, the employer submitted the employee’s behaviour in recording conversations was serious misconduct and unlawful in accordance with the Surveillance Devices Act 2016.

The Commission noted the act of secretly recording conversations was generally at odds with the employment relationship, however, the circumstances and context which lead to the recordings must be considered.

“One such justification may be that the recording was a reasonable course available to protect one’s lawful interests,” said the Commission.

Whilst the Commission did not contemplate how many recordings were made and described them as “amateurish pieces of detective work,” it was satisfied the recordings were made to protect the employee’s interests after the employee reported the employer to the Fair Work Ombudsman and Border Force.

The Commission concluded the secret recordings were a valid reason for dismissal.

However, the dismissal was not compliant with the Code and because of this the Commission ruled the dismissal unfair.

Learnings for business

It is important that businesses take swift action when issues arise with an employees’ performance or conduct as well as maintain documentary evidence which demonstrates the steps taken. Delays in disciplinary action can signal to the employee that the business does not consider the issue to be of a serious nature thereby limiting an employer’s ability to rely on the incident at a later date.

How we can assist

The Victorian Chamber advises members daily on all aspects of performance management and conduct issues. With a breadth of knowledge and experience at our disposal we can provide up-to-date and holistic advice to assist your business navigate the layers of complexity. Our workplace relations Advice Line is a useful tool for on-the-spot advice saving your business unnecessary time unraveling complex workplace laws.

Further, if you receive a dismissal related claim our Consultants are able to help respond to the claim and represent you in the Fair Work Commission.

If you have any questions, please call the Workplace Relations Advice Line on 8662 5222.

Written by Gerri Carreon, Graduate Workplace Relations Advisor

[2020] FWC 5210