Workplace Express has posted this recent article which illustrates some salutary lessons for employers in what not to do when terminating an employee’s employment. It also illustrates that there are still employers out there who just ‘don’t get it’ with regard to fairness and Natural Justice.
The Fair Work Commission has castigated an employer for “one of the worst unfair dismissals on record” when it dismissed a long-serving employee with a 21-word text message.
In upholding the unfair dismissal claim of a retail assistant who worked part-time for 19 years of “unblemished” service, Deputy President Peter Sams said it would be “difficult to imagine a more grossly unfair dismissal”.
“In my view, the severity and magnitude of the unfairness in this case is so manifest that it must fall within a category of one of the worst unfair dismissals on record”, he said.
Deputy President Sams said that the long-serving employee of a group of related tiling companies, including Versatile Ceramics and More Ceramic Tiles, located in Sydney’s west, was dismissed “without any notice, for no reason and with no warning”.
“Moreover, the means of communicating her dismissal, by a brief SMS message was brutal, gutless and outrageous”.
The retail assistant had worked part-time on weekends for one of more of the companies for 19 years before hearing from the proprietor by text message in “bald, unexplained” terms on June 7 last year that her services were no longer required: “I am no longer contracting to MCT as of today, therefore your services are not required with immediate effect. Regards Alex.”
The company failed to pay pro rata long service leave, annual leave, payment in lieu of notice or five weeks of unpaid wages. It later unsuccessfully arguing before the FWC that she had been a contractor, rather than an employee.
Deputy President Sams said he agreed with Commissioner Ian Cambridge in………in which he said that while there could be some circumstances where a decision to dismiss might be justifiable without giving an employee “a face-to-face opportunity to be heard”; these should be confined to situations involving a genuine threat of violence or where gross and wilful misconduct had either been admitted or involved “no possible explanation or mitigation”.
Commissioner Cambridge in Modestie warned employers that if they are not prepared to dismiss an employee face-to-face “the basis for the decision is immediately opened to challenge upon the inference that the decision maker did not have, in all good conscience, sufficient confidence in the decision to act with any conviction”.
“Consequently if dismissal is implemented by any means other than face-to-face communication both the legal and ethical basis for the decision to dismiss is likely to face strong and successful challenge”, Commissioner Cambridge said.
After devoting a great deal of his decision to trying to unravel the ownership and employment structure of the string of retail tiling companies, Deputy President Sams upheld the retail assistant’s argument that there was no valid reason for the dismissal.
“There was no evidence of any unsatisfactory performance or conduct issues. . . Indeed, the evidence is that she was a loyal, hardworking employee, who had even won awards for her sales performance,” he said.
Deputy President Sams noted Commissioner Cambridge’s comment …… that if SMS is a regular form of communication between an employer and employee for rosters or working hours, it is “an inappropriate means for notification of dismissal or reason(s) for dismissal”.
Commissioner Cambridge had said the dismissal by text message deprived the employee of the opportunity to respond to the dismissal or raise any defence to “issues that may have contributed to the decision to dismiss”.
Deputy President Sams gave the tiling group management the opportunity to make submissions in response to the retail assistant’s preference to be reinstated to her weekend work as a remedy for the unfair dismissal.
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