The employee began working for the business in April 2019. During his employment, the employee was not provided with payslips and he regularly raised this issue with the employer.

On 25 August 2020, the employee met with the employer and Operations Manager, again asking for copies of his payslips. The employer said he had already received the payslips. The employee maintained he had not. The employer called the employee a “liar and a moron”.

The employee stood up and punched a hole in the plasterboard wall with a clenched fist. The employee claims he then walked out of the meeting room. The employer meanwhile, claimed the employee stormed out of the room saying he “quit and would not be back”. The employee denied saying it.

After the meeting, the Operations Manager told the employee to go home as he probably was not “in the right head space”. The employee said his stress levels were increasing and he would see his doctor. The employee then retrieved some of his belongings, being items he normally took home each night. That evening the employee made an appointment with a general practitioner.

On 31 August, the employee attended the workplace to provide a copy of his medical certificate and complete his timesheet from the previous week, noting that he was on “sick leave” from 26 August to 28 August - the days following the incident.

The following day, on 1 September, the employee returned to work at his usual commencement time and was questioned “what are you doing here?”. The employee responded, “I work here. I was on stress leave last week”.

30 minutes later, the employee was informed he was no longer an employee.

That evening, the employee received a text message reiterating he was not to enter any work sites and that his sick leave would not be approved since his employment had ended the previous week.

Was the employee dismissed?

After the case had been brought to the Fair Work Comission (“the Comission”), the employer claimed the employee resigned saying he ‘quit and would not be back’. the Commission first considered whether the employee was dismissed. The Commissioner found the employee did not make the comment and did not resign from, or abandon his employment.

The Commission was satisfied the dismissal was at the employer’s initiative with the termination of employment taking effect on 1 September – a week after the incident, when the Operations Manager told the employee he was no longer an employee.

The decision

While the employer had a valid reason for dismissal - he punched a hole in the wall - the Commission concluded the dismissal was harsh. The business’ own conduct in failing to comply with its obligation to provide the employee with payslips and calling the employee a “liar and a moron” caused the employee to become frustrated.

In addition, the employer failed to notify the employee of the reason for dismissal and failed to afford the employee the opportunity to respond or have a support person present.

When considering remedy, the Commission considered reinstatement was not appropriate. The Commission ordered the employee be compensated almost $18,000 on the basis he would have likely been employed for a further three months before leaving or being dismissed.

Learnings for business

This case highlights the importance of affording employees procedural fairness when contemplating disciplinary matters, particularly dismissal. Even when an employer has a valid reason to dismiss an employee, the absence of an opportunity to respond or comply with the requirements of the Fair Work Act 2009 (Cth) will render the dismissal unfair.

This case also highlights if an employee leaves the workplace or fails to attend work, it is not appropriate to immediately conclude the employee has abandoned their employment. Employers must take reasonable steps in establishing communication before concluding there is no intention of returning to work.

How the Victorian Chamber can help

Before considering the dismissal of an employee, call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss and confirm your obligations as an employer. The Victorian Chamber also have specialised consultants who can assist your business with strategic advice in navigating employment relations issues, delivering training in various Workplace Relations or Occupational Health and Safety matters or representing your business in the Fair Work Commission.

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 better understand counselling and discipline processes, and how to best manage an unfair dismissal claim.

[2021] FWC 1220