Background

The employee worked for the business as a full time lawyer for over one year. The business sought to terminate the employee during a probationary period, arguing continuous service was broken when the employee was made redundant and then rehired under a new probationary period. A few days after the termination was made known to the employee, the business sought to dismiss the employee again, specifically for their conduct. The company had found the employee emailed confidential documents to themselves and others outside the firm. This breached policy and procedure. The employee lodged an unfair dismissal claim challenging their termination.

The Decision

The business argued the employee had no access to unfair dismissal given continuous service was broken when the employee was made redundant. However, the employee had accepted a new role with the company including a salary increase, a new contract and a new location of work. Given this, the Commission ruled the employee had been redeployed, continuous service was not interrupted and the qualifying period for an unfair dismissal claim had been met.

The Commission then considered whether the dismissal was harsh, unjust or unreasonable. The business alleged the employee was terminated for an unauthorised transfer of confidential documents which amounted to the employee “attempting to steal” from the business. The Commission did not this as a valid reason since the business was unaware of the facts surrounding this at the time of dismissal. This meant the misconduct could not be relied upon as the reason for the dismissal. The Commission did consider the company’s other reason for the dismissal, being a refusal of the employee to transfer sites as per the conditions of redeployment. This was accepted as a valid reason.

The Commission commented on the “unjust” lack of procedural fairness given the employee was not made aware of the reason for his dismissal and was not provided with the opportunity to respond. The dismissal was ruled as unfair given the procedural failings. However, the employee was awarded no compensation, given their participation in sharing confidential information and persistent refusal to move work locations, despite the contractual agreement. The Commission noted that had the employee not been unfairly dismissed “his employment would not have been likely to continue and that he would have been terminated by other means.”

Lessons for employers

When considering termination of an employee, the business should consider whether a valid reason for dismissal exists. Similarly procedural fairness will be scrutinised in an Unfair Dismissal claim. It is important the employee is given an opportunity to respond to the allegations against them.

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 Janet Watt, Graduate Workplace Relations Advice Line Advisor

Mr Dylan Hans v QS Law Pty Ltd T/A Quinn and Scattini Lawyers [2019] FWC 5034 (25 July 2019)