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“Ignominiously memorable” termination sees employers’ poor dismissal process condemned

Submitted on Wednesday, 2nd August 2017

An employer who dismissed an employee with little regard for the legislative process has had their actions labelled as shameful and “devoid of compassion” by the Fair Work Commission (“Commission”) during an unfair dismissal hearing.

The employee, a 56 year old part time cleaner, had worked for the employer for over five years before surgery for ankle spurs caused a lengthy absence. The absence ranged from August 2016 to February 2017. In early February, the employer’s Injury Department Manager telephoned the employee to discuss her medical condition and absence. Despite being aware of an upcoming medical appointment to review her ability to perform the inherent requirements of the role, the manager made a rash decision to terminate the employee effective immediately.

The employee submitted an unfair dismissal claim arguing that the employer did not have a valid reason for dismissal and that they had not complied with procedural fairness requirements.

In assessing the employer’s process and reason for termination the Commission stated “The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate and devoid of compassion”. The Commission held there was no valid reason for the dismissal noting the manager made the decision during a telephone call without seeking medical advice. When considering this point Commission Cambridge remarked “The capricious falsity of the employer’s decision was blatantly exposed by the medical clearance to return to work provided four days after dismissal.  There was no explanation provided for the employer’s extraordinary hasty and plainly erroneous decision.”

The Commission further condemned the employer’s process because it denied the employee “natural justice”. The employee did not have access to a support person nor were they given an opportunity to respond.

The Commission denounced the use of a telephone to deliver a termination likening it to the employer having the “perfunctory dispassion of tossing out a dirty rag”. Finally, the Commission used their broad discretion in considering the harshness of a termination by applying weight to the employee’s length of service, age, skills, and geographical location.

The employee’s application was successful and her employment reinstated.

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett

Fair Work Commission Decision (U2017/1880)

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