Fair Work Commission finds dismissal unfair after employer failed to establish a valid reason
An employee with more than five years’ service as a kitchen hand at a hospital café was awarded $8,425.17 in compensation after the Fair Work Commission found that his dismissal was harsh and unreasonable.
In [2016] FWC 7860, Commissioner Gregory examined the circumstances surrounding the dismissal, including the employee’s concerns about wages, workplace safety and the cleanliness of the kitchen.
The decision highlights the importance of employers having a properly supported reason for dismissal, providing employees with a fair opportunity to respond, and producing evidence to substantiate allegations of poor performance.
Background
The employee had worked at the hospital café since February 2011. He alleged that he was dismissed after raising concerns about underpayment of wages and the condition of the kitchen floor, including a build-up of grease that he considered a safety risk.
The employer maintained that the dismissal followed complaints about slippery floors in the café dining area. It alleged that grease had been transferred from the kitchen floor to the dining area and claimed that the employee had received two verbal warnings.
The employee disputed receiving those warnings. He also said that he had not been told in advance that the meeting on 4 April 2016 would concern his performance or the possible termination of his employment.
At the meeting, he was told that the employer could no longer support him and that his cleaning did not meet the required specifications.
The Commission’s findings
Commissioner Gregory found that the employer had not provided evidence to substantiate the alleged customer complaints or the claimed verbal warnings. The employee’s evidence was that he had not previously been warned about his performance or behaviour.
The Commission also noted that the employee had worked for the business for a substantial period, during most of which there had apparently been no significant concerns about his work.
After considering the evidence, the Commissioner was not satisfied that the employer had established a valid reason for dismissal. The decision was found to be a capricious response, primarily associated with the employee’s concerns about his entitlements and the condition of the kitchen.
The Commission also found that the employee had little or no opportunity to respond to the reasons for dismissal. Those reasons had not been clearly explained to him in advance, and he had not been given a meaningful opportunity to address the concerns before the decision was made.
Although the employer operated a relatively small business, the Commission found that the dismissal was, at least, harsh and unreasonable.
Compensation awarded
Reinstatement was not sought and was considered difficult in the circumstances. The Commission therefore considered compensation instead.
The Commissioner assessed the employee’s likely future earnings, deducted income earned in alternative employment and applied a further deduction for contingencies.
The resulting compensation order was $8,425.17, payable within 21 days of the decision.
Key lessons for employers and employees
This decision illustrates several important principles:
- Allegations need evidence. An employer’s assertion that warnings were given or performance was unsatisfactory may carry little weight if the claims are not supported by evidence.
- Employees should be given a fair opportunity to respond. Where performance or conduct is in issue, the concerns should be explained clearly and the employee should have a meaningful opportunity to answer them before dismissal.
- The reason for dismissal matters. The Commission examines whether the reason is sound, defensible and well founded, rather than simply accepting the employer’s stated explanation.
- The surrounding circumstances matter. The Commission considers the employee’s service, the evidence, the procedure followed and all other relevant circumstances when deciding whether a dismissal was harsh, unjust or unreasonable.
The case is a reminder that an employer should investigate concerns properly, keep reliable records and follow a fair process before making a decision to terminate employment.
Decision and representation
Decision: [2016] FWC 7860, dated 28 October 2016.
Commission Member: Commissioner Gregory.
Employee’s representative: Nicholas Dircks of Just Relations, who was granted permission to appear under section 596(2)(b) of the Fair Work Act 2009.
This article is general information only. It is not legal advice and should not be relied upon as a substitute for advice about an individual matter.