In a decision on a recent unfair dismissal the Commission has made it very clear that there was a valid reason for dismissing the employee but that the process followed rendered the dismissal unfair.  This decision goes further to outline exactly what the business should have done to ensure the dismissal was fair.

Case Review

In this case an apprentice mechanic was dismissed after it was found that he signed off that he measured a customer break pad as having 9mm depth and the customer found the actual depth was 2.5mm and lodged a complaint.

The business met with the employee the next day and presented him with the customer complaint.

Following the meeting with the employee the business sought the advice of the HR department who confirmed that the employees dishonesty was a valid reason for dismissal.

The employee continued to work for several days and on the day of his dismissal he was picked up from work and taken to a meeting with three managers.  This meeting lasted 10 minutes and at its conclusion the employee was summarily dismissed.

Following the meeting the employee was emailed a letter that identified the reason for termination as “negligence and dishonesty to fulfil your role”.

In delivering his Decision Deputy President Nicholas Lake confirmed that the reason for dismissal was indeed valid but that the dismissal was harsh because the summary dismissal was disproportionate to the misconduct and the business gave the employee no notice of the meeting.

Learnings for All Business

“Businesses should take this case as yet another reminder that a ‘fair’ dismissal is one that has two elements; a valid reason and a valid process”, explains ACAPMAs Elisha Radwanowski.

“It does not make sense to some people but even very serious actions that all people can agree is a valid reason for termination, such as an unprompted or unprovoked punching the boss in the face, can still be found to be harsh or unfair if the required process was not followed”, continues Elisha.

“All employees have procedural rights, even if they have engaged in gross misconduct.  They are entitled to; understand the business expectations and the likely outcome of failing to meet the expectations; understand the breaches; have an opportunity to respond to the breaches BEFORE a final decision is made and; to have a support person attend the meetings with them if they choose”, explained Elisha.

“It is this last element that this case clearly breached.  By surprising the employee with the meeting in which the termination occurred the business denied the employee notice of the meeting and thus the opportunity to arrange for a support person to attend the meeting with them”, continued Elisha.

“This is not an uncommon element for dismissals to be found ‘harsh’ over.  What is different in this case is the very clear communication from the Deputy President around what the business should have done to render the dismissal fair”, notes Elisha.

The Deputy President outlined that the business “could have provided better steps to prevent issues of procedural fairness such as sending an email with written allegations, notifying him that it would consider disciplinary action, including dismissal, and asking him to attend a meeting with a support person” and confirming that “if any of these steps were demonstrated, the dismissal would have been less harsh”.

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Here to Help

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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