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Employee dismissed by text denied a “fair go all round”

Submitted on Thursday, 9th November 2017

The Fair Work Commission has recently determined an employee dismissed via text message was unfairly dismissed.

The employee was dismissed by a specialist tour company (Company) in March 2017, after it alleged the employee was running their own business whilst they were supposed to be working for the Company, something the Company maintained the employee never disclosed.

The Company stated the employee informed them in January 2017 they intended to start a new business. However, the Company formed the view the business was launched in February 2017.

The Company argued the employee’s LinkedIn page indicated the employee was the Personal Concierge and Lifestyle Manager of the new business from as early as December 2016. The Company also maintained there was a noticeable change in the employee’s work habits including the constant need to go outside to take private phone calls.

The employee denied operating the new business whilst working for the Company. The employee confirmed she registered the business name and acquired a web address as a preliminary measure. The employee went on to state she only started devoting most of their energy into the new business from the end of June 2017 some 3 months after the dismissal took effect.

The Commission acknowledged it was not unusual for a business to market themselves on social media with a view to “look like [the business] has been around longer than it has” and they “might be stretching the truth a bit”.

The Commission went on to state the conclusions drawn by the Company were unwarranted as there is nothing to support the allegation the employee was operating their own business to the detriment of the Company.

Having regard to all of the evidence, the Commission decided there was “no reason advanced” by the Company relating to the conduct or capacity of the employee which “could or would or did constitute a valid reason for dismissal”.

The employee was only notified of the reason for the dismissal after they had been informed by text message “your services are no longer required”. In view of this it followed the employee was not given an opportunity to respond to any reason for dismissal.

Concluding the employee’s dismissal was: harsh because the employee had not engaged in the alleged misconduct; unjust because the employee was denied procedural fairness by the company and was given no opportunity to defend themselves; and unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round, the Commission did not consider reinstatement an appropriate remedy, and as a result awarded the employee $12,550.00 in compensation. The sum of compensation awarded reflected the part-time hours worked by the employee with no discount being applied.

As demonstrated in this case, 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 the dismissal process including what constitutes a valid reason for dismissal. This course also provides invaluable information regarding counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Benjamin Cirona

Fair Work Commission Decision (U2017/3524)

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