Industrial Relations - of Interest - Recent FWC Decision
There has been an interesting decision come of out the Fair Work Commission recently as a result of an Application for Unfair Dismissal Remedy. Whilst the compensation was not excessive, the findings reinforce the requirement for ensuring procedural fairness and a sound process.
The Employee was dismissed for three reasons:
- sending inappropriate messages to his manager;
- promoting and operating his own business; and
- a lack of deliverables during working hours.
The Employee was seeking compensation of 12 months wages.
By way of high level summary:
- The Employee alleged that he had been unfairly dismissed from his employment.
- The Employer contended that the dismissal was not harsh, unjust or unfair taking into account the requirements of s.387 of the Act.
- The Employee was dismissed during a meeting with the Employer without a support person present (the Act does not require it), without a show cause process and without the Employee being provided details of the allegations.
- While the FWC were satisfied that the Employee had an opportunity to respond (based on his admission and evidence put to him in a meeting), the FWC were not satisfied the Employee was given a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him.
- The FWC found that the Employee should have been provided an opportunity to digest the allegations and show cause why he should not be dismissed which would have been a more appropriate and fair dismissal process.
- The FWC was satisfied that while the Employer had valid reasons based on the Employee's conduct, the meeting failed to provide the Employee with fair opportunity to genuinely take into account the allegations and evidence against him in relation to the three reasons that led to his dismissal. He was also denied the opportunity to give due consideration to this information before responding, and the Employer subsequently denied itself the opportunity to give genuine consideration to the Employee's responses.
- It was determined that on this basis the relevant considerations in s.387 of the Act weigh in favour of a finding that the dismissal was procedurally unfair.
- The FWC did not consider a remedy of reinstatement appropriate but did consider a remedy of compensation was in order.
- The Employer was required to pay one week’s wages to the Employee.