In an unusual set of circumstances an award of over $3,000 for pain and suffering has been added to a $6,000 standard award in an unfair dismissal case that the Commissioner has categorised as callous when he noted that the employee “suffered distress beyond that of most dismissals”. Given the employee was terminated after asking about unauthorised deductions from her pay, which turned out to be for “bathroom, food, drink and phone usage breaks”, and there was a series of threats of action to damage the employees reputation in the industry after termination, this case highlights a broad series of errors and non-compliances.

Background

The employee was working at a Kennel for almost 2 years.  In January 2020 she raised concerns about animal welfare and received no response.  On 1/2/2020 she noticed a shortfall in her pay and sent a text to her manager asking what the deductions were.  She was informed that it was for bathroom breaks, food breaks, drink breaks and phone usage breaks.

On 3/2/2020 the manager told the employee that he didn’t like her attitude and that she was difficult to be abound and proceeded to tell her that she was dismissed and had to leave stating that “its time for you to go.  I don’t like your attitude.  You are costing me income.  I don’t like your attitude and you are hard to be around.  You’re a good worker and your work was fine but it is time for you to leave”.  He then locked the door as she left the room.

Following the dismissal the manager then threatened, in a series of text messages, to tarnish the employees reputation with future employers.  The manager accused the employee of reporting the kennel to the RSPCA, which the employee denied leading to the manager threatening to euthanise 60 dogs if the employee did not tell the manager who did make the report.

The employee lodged an unfair dismissal claim.  Conciliation was unable to bring a resolution and the matter was listed for hearing.  In seeking an adjournment of the hearing on three separate occasions without providing formal submissions the manager noted that “I had to give up a majority of my work to replace that bitch [the employee] at the kennel with myself because she would no longer follow instruction, because she thought she knew better about everything now that she had veterinary nurse training under her belt” before amending the reason for dismissal to state that the employee was dismissed for neglecting the welfare of the animals, falsely claiming hours worked, damaging the businesses profitability, refusing to communicate with the manager and engaging in disruptive and upsetting behaviour towards other employees.

Findings

The Commissioner had “no hesitation in accepting the employees evidence” as correct vs that of the manager and noted that the business “exercised its legal right to terminate [the employee] in a manner that was harsh, unfair and mounted to an abuse of that right”.  The Commissioner acknowledged the broad claims of the manager of performance issues and clarified “these concerns ought to be raised with the employee and an opportunity to address the concerns ought to be provided to an employee” and that the business did not do this.

“I find [the business] treatment of [the employee] both at the time of the dismissal, in locking the door after her, and after the dismissal, in respect of text messages concerning reports to the RSPCA, threats to euthanise 60 dogs and threats to tarnish [the employees] reputation with future employers to be callous.  I therefore order she be paid $3,000 for the injury suffered”.

Learnings

This case reads like a compliance horror story, and it is difficult to read the evidence without coming to the conclusion that the Commissioner was reserved in her decision and that the manager had absolutely no concern for compliance or the fair and reasonable treatment of employees.  Despite the clear disregard of the manager in this case there are a few things that all operators should take note of in terms of compliance that are raised by this case;

  • Pay deductions
    Deductions from pay have to be authorised, this means an instruction from the employee in writing (such as deductions for union membership dues, salary sacrifice) or via a court order (such as a garnishee order).  There is no other legitimate deduction that can be made to employees wages.  All time worked is time paid, this includes bathroom breaks, and may include meal breaks depending on the Award
  • Break Policies
    Any changes to polices for breaks must come with notification and communication to staff and a lead time.  The business may have previously provided paid meal breaks that are over and above those that are required in the Award, but if the decision has been made that that additional benefit will be removed, then it needs to let the employees know and set a date in the future for implementation.  Benefits, even above Award benefits, cannot be changed without notice
  • Performance Management
    Where there are issues with performance the employee has a right to understand them and respond to them, and if they are minor correctable issues the employee also has a right to demonstrate improvement.  Even where the performance is gross misconduct, the employee has a right to understand the breach and respond BEFORE a final decision is made
  • After Employment Actions
    Actions that the employee takes after dismissal can impact unfair dismissal claims, so can the actions of the business.  Some employment relationships end acrimoniously, but threats and actions that limit an employees reputation or employability are, quite rightly, likely to result in penalties to the business

“It is unusual for unfair dismissals to come with a pain and suffering element, and this case is an unusual one, but it is a reminder to all businesses that there are managers that still believe that this kind of behaviour is acceptable, event to the extent of describing the employee with profanity directly to the Commission, and that the business will be held responsible for the actions of their managers – so now is the time to confirm performance management expectations with all managers” explains ACAPMAs Executive Manager for Employment and Training, Elisha Radwanowski.

More Information

For more on Unfair Dismissals and Performance Management see;

ACAPMA Performance Management Series

− Part 1 – Calling a Meeting https://acapmag.com.au/2020/08/hr-highlight-performance-management-series-part-1-calling-a-meeting/

− Part 2 – The Meeting https://acapmag.com.au/2020/08/hr-highlight-performance-management-series-part-2-the-meeting/

− Part 3 – Decisions and Documentation https://acapmag.com.au/2020/09/hr-highlight-performance-management-series-part-3-decisions-and-documentation/

− Part 4 – Review or Closure https://acapmag.com.au/2020/09/hr-highlight-performance-management-series-part-4-review-or-closure/

ACAPMA Unfair Dismissal Series

− Part 1 – A Fair Dismissal https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-1-what-does-fair-dismissal-look-like/

− Part 2 – Claim of Unfairness https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-2-claim-of-unfairness/

− Part 3 – The Conciliation Conference https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-3-the-conciliation-conference/

− Part 4 – After Conciliation https://acapmag.com.au/2020/07/hr-highlight-unfair-dismissal-series-part-4-after-conciliation/

− Part 5 – Preparation for Hearing https://acapmag.com.au/2020/08/hr-highlight-unfair-dismissal-series-part-5-preparation-for-hearing/

− Part 6 – Outcomes, The Stats, Myths and Payouts https://acapmag.com.au/2020/08/hr-highlight-unfair-dismissal-series-part-6-outcomes-the-stats-myths-and-payouts/

Here to Help

ACAPMA members can access resources and can call ACAPMA for advice and support by contacting the employment professionals via employment@acapma.com.au.  HR Highlights are general information for you to consider and do not constitute advice on

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

 

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