COVID-19 has forced a dramatic change in the way businesses operate with ZOOM Meeting and remote working the only option for many businesses. But a recent case before the Fair Work Commission wherein the dismissal of the employee was found to be for a valid reason, but still to be unfair due to communication via electronic and not face to face means. This case has highlighted that the laws are not as quick to adapt and that businesses should make the time for traditional performance management as this weeks HR Highlight Case Review explores.

A changing world

The world in November 2020 is a very different place than it was in January 2020, and the world of work may arguably never be the same again. While Australia has done an admirable job in managing the virus, the restrictions that were placed on the movement of people had a dramatic, and likley lasting, impact on the way work is done. Working from home has become the norm, the default, with many businesses embrasing the platform well beyond the operation of the ‘stay at home’ orders. We are all familiar with the ZOOM Meeting and have become adept at team management in a remote setting. Face to face meetings, even for those that were still working, is mostly a distant memory. Indeed it is 9 months after the virus first hit the news reports and Melbourne still has a ‘work from home order’ in force, despite the steady easing of restrictions there.

It is in this context that some of the most settled elements of employment law are being gently tested.

Case Review

In this case the business was trading albeit in a restricted and low staff manner. All of the staff tasks had changed slightly. The staff member in question, a bartender who was participating in the JobKeeper program, was called to a meeting to discuss breaches and following the discussion was issued a formal warning for refusing to complete allocated tasks (particularly cleaning tasks) and unprofessional conduct. After receiving the formal warning the bartender provided a response electronically and challenged why verbal warnings were not given. The business engaged in discussion and electronic messaging with the bartender. Shortly after the business issued a termination electronically.

The details of any case are unique and the slightest change can change the outcome, however, on the face of it the business saw an issue, called a meeting, had the meeting, documented the meeting and issued a formal warning. Then based on the employees subsequent behavior determined that the conduct was not improving and issued a termination, this time electronically.

In this case, in finding the dismissal unfair the Commissioner noted, that while the business had a valid reason for the dismissal (the failure to follow lawful instructions and the unprofessional conduct) the use of electronic communication instead of face to face communication resulted in an unfair process of dismissal and thus an unfair dismissal.

The Commissioner noted in making the ruling, that the reliance on messenger services and email for communication, despite the bartenders own preference for these methods of communication, contributed to the unfair process, and that had the process been conducted entirely face to face that such a failure of process would have been less likely.

The Commissioner awarded the bartender a remedy of $170 before tax, equivalent to 1 weeks pay, after making adjustments down (deductions) to reflect the valid reason and the bartenders own actions that contributed to her dismissal.

The impact of this case on the business itself is broader than the remedy that is applied. It is noted that the average Unfair Dismissal Claim takes time and effort on the part of the businesses, in general a case that goes all the way to the Commission for hearing can take around 50 hours of work to defend;

  • 3-6 hours to draft Response Form F3
  • 1.5 hours to attend the Conciliation Conference
  • 8-24 hours to prepare for the Hearing
  • 8-24 hours to attend the Hearing

Learnings and Considerations

In a Post COVID-19 World, it could be argued that the business has acted reasonably. Indeed in Melbourne, where the ‘work from home’ order still stands, it could be argued that it would be inappropriate to have the meeting as a face to face meeting as the technology of a ZOOM Meeting allows face to face interaction without the risk of infection. When Annual General Meetings and National Cabinet Meetings are all being held in this manner, it would seem reasonable to assume that it would meet the requirements of employment law, but this case highlights that such an assumption may not be a safe bet.

Again, each case is different, but this case is a reminder that while the world of work is quick to adapt, the world of workplace law is much slower to do so.

The takehome is this, when it comes to performance management, even in this Post COVID-19 World businesses should ensure that they are clear about expectations of performance and conduct, and that when the performance of an employee falls below this expectation that it is managed in a fair and open way.

Ideally this means;

  • the calling of a performance management meeting with notice,
  • the discussion of the expectations and breaches in the meeting,
  • the opportunity to understand the breaches and respond for the employee and to have their responses be considered BEFORE a final decision on the outcome is made,
  • the detailed and clear documentation of the meeting outcome (eg; warning or termination),
  • the opportunity to demonstrate improvement (where appropriate), and
  • the communication of termination in person wherever practicable.

Last Word and More Information

It is likley that this will not be the end of the evolving discussion on digital communication in the employment compliance space. As more people work from home, and more businesses manage partially and fully remote workers this quesiton of performance management at a distance is likley to be further discussed, and settled on both sides in the case law. For now though…if you can do performance management face to face…you should!

For more on Performance Management and Unfair Dismissals check out the ACAPMA HR Highlight Series;

ACAPMA HR Highlight: Performance Management Series

ACAPMA HR Highlight: Unfair Dismissal Series

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HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general advice and should seek further advice on your situation by emailing to reach one of the ACAPMA Workplace Relations Professionals, its free for members.

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Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Training