What to avoid when ter­mi­nat­ing employees

In Brief 

There are sev­er­al actions which Employ­ers need to be aware can get them into trou­ble regard­ing ter­mi­nat­ing an employ­ee and any sub­se­quent employ­ee claim to the Fair Work Com­mis­sion. Remem­ber a claim for unfair dis­missal is an acces­si­ble and cheap process for many employ­ees which can end up cost­ing employ­ers time if not money. 

1. Have a Social Media Policy

Employ­ers need to be care­ful when apply­ing stan­dards of behav­iour to employ­ees out­side of the work­place. It is also impor­tant if employ­ers want to restrict adverse com­ments on social media about their organ­i­sa­tion that they imple­ment a social media pol­i­cy. When hold­ing employ­ees account­able employ­ers must ensure they do so fair­ly and con­sis­tent­ly.

Glen Stut­sel v Lin­fox Aus­tralia Pty Ltd [2011] FWA 8444

In this case the employ­er ter­mi­nat­ed the employ­ee for seri­ous mis­con­duct fol­low­ing the employ­ee and friends mak­ing racial­ly deroga­to­ry and sex­u­al­ly dis­crim­i­na­to­ry com­ments about man­agers on his Face­book page. The employ­ee claimed that anoth­er per­son had post­ed the sex­u­al com­ments and that his pri­va­cy set­tings were set at max­i­mum, mean­ing they were not pub­licly accessible.

It was sig­nif­i­cant that the employ­ee believed his Face­book com­ments could only be seen by him­self and those he accept­ed as friends. Fur­ther it was rel­e­vant the employ­ee did not realise he could delete the com­ments of oth­ers made on his Face­book page.

The sex­u­al com­ments about one man­ag­er were not made by the employ­ee and the Com­mis­sion con­sid­ered it strange to hold the employ­ee account­able for the com­ments of oth­ers. The Com­mis­sion con­clud­ed the employ­ee was not guilty of seri­ous mis­con­duct and there was no valid rea­son for ter­mi­na­tion. It was rel­e­vant no oth­er employ­ees who made deroga­to­ry com­ments were the sub­ject of any sanc­tion by the employ­er. The Com­mis­sion con­clud­ed he had been unfair­ly dis­missed and ordered he be rein­stat­ed. The employ­ee also received lost wages fol­low­ing termination.

The Com­mis­sion­er not­ed that the employ­er did not have a social media pol­i­cy pro­vid­ing guid­ance on appro­pri­ate social media com­men­tary and use and stat­ed not hav­ing such a pol­i­cy was not suf­fi­cient. The case is cur­rent­ly the sub­ject of an appeal.

2. Make sure it is a Gen­uine Redundancy

Employ­ers who fail to observe the Fair Work Act 2009 (Cth) (the Act) require­ments relat­ing to redun­dan­cies can find them­selves exposed to unfair dis­missal claims. A recent deci­sion before Fair Work Aus­tralia (now the Fair Work Com­mis­sion) high­lights the legal require­ments under the Act that employ­ers will need to con­sid­er, when propos­ing to ter­mi­nate due to redun­dan­cy.

Horn v Mas­termyne Engi­neer­ing Pty Ltd [2012] FWA 10846 

The employ­ee claimed he had not been made gen­uine­ly redun­dant on the basis that; there was no con­sul­ta­tion or any demon­strat­ed effort to iden­ti­fy alter­na­tive posi­tions in the employ­ers busi­ness; fol­low­ing the employ­ees ter­mi­na­tion his duties were allo­cat­ed to oth­er employ­ees not qual­i­fied to under­take the work; and the employ­er sub­se­quent­ly adver­tised posi­tions the employ­ee was qual­i­fied for.

The employ­er sub­mit­ted the employ­ee’s role was no longer required to be under­tak­en by any­one due to changed oper­a­tional require­ments, in response to a down­turn in the coal indus­try. Senior Deputy Pres­i­dent Richards con­sid­ered that it did not mat­ter whether the employ­er redis­trib­uted the employ­ee’s for­mer duties to oth­er employ­ees, who were not qual­i­fied, as that was a mat­ter for the employ­er. He recon­sid­ered that had it not been for the finan­cial cir­cum­stances that led to the siz­ing review, the employ­ee would in all like­li­hood have remained an employ­ee of the company.

The employ­er estab­lished they had inves­ti­gat­ed the avail­abil­i­ty of alter­na­tive posi­tions in the employ­ers group of com­pa­nies; how­ev­er, those inves­ti­ga­tions were unsuc­cess­ful. The posi­tions adver­tised after the employ­ee was ter­mi­nat­ed, were for fit­ters under­tak­ing under­ground work – some­thing the employ­ee did not meet the reg­u­la­to­ry require­ments for. Richards SDP deter­mined that there was no oblig­a­tion on the com­pa­ny to over­come the dif­fer­ence in skill and expe­ri­ence by retraining.

Richards SDP not­ed that the employ­er had held a pre-start meet­ing” with employ­ees at which the organ­i­sa­tion review was explained, the mem­o­ran­dum of that meet­ing was pub­licly avail­able and employ­ees had been invit­ed to prof­fer sug­ges­tions to off­set, avert or mit­i­gate the pro­posed changes. In this con­text Richards SDP found the employ­er had com­plies with the con­sul­ta­tion pro­vi­sions of the rel­e­vant Award.

Richards SDP con­clud­ed that the employ­ee had been made gen­uine­ly redun­dant and the employ­ees appli­ca­tion was dismissed.
For fur­ther infor­ma­tion on redun­dan­cy see our arti­cle on Redun­dan­cy and for the full case details see our arti­cle here.

3. Use a sys­tem of employ­ee warnings

Employ­ers must be care­ful to under­take per­for­mance man­age­ment pro­ce­dures such as com­mu­ni­cat­ing expec­ta­tions and issu­ing warn­ings prop­er­ly and ensure they doc­u­ment such a process. If an employ­er does not do this they may face dif­fi­cul­ties if that employ­ee is lat­er ter­mi­nat­ed for poor per­for­mance and brings an unfair dis­missal claim.

Moumtzis v Dolina Fash­ion Group Pty Ltd [2013] FWC 501

The employ­ee in this case was ter­mi­nat­ed on the basis she was unfit for her posi­tion as a designed of wom­en’s cloth­ing. The employ­er had informed her she had not achieved the prof­it mar­gins of the busi­ness and was pur­chas­ing expen­sive fabrics.

The employ­er did not put for­ward any evi­dence con­cern­ing dis­cus­sions had pri­or to the ter­mi­na­tion and as such Vice Pres­i­dent Wat­son was left to con­sid­er the uncon­test­ed evi­dence of the employ­ee. After that dis­cus­sion the employ­ee was not giv­en a chance to respond to the claim she was not per­form­ing. VP Wat­son did not con­sid­er that a per­cep­tion the employ­ee was not per­form­ing when on her evi­dence she did not have any KPI’s, bud­gets or annu­al reviews amount­ed to a valid rea­son for termination.

The evi­dence did not estab­lish that the employ­ee had been warned of any unsat­is­fac­to­ry per­for­mance pri­or to the ter­mi­na­tion. The fact there was no valid rea­son for ter­mi­na­tion, no chance for the employ­ee to respond and no pri­or warn­ings led to the con­clu­sion the employ­ee was dis­missed unfair­ly. VP Wat­son ordered the employ­er pay the employ­ee 22 weeks pay as compensation.

4. Ter­mi­na­tion with­out an inves­ti­ga­tion is dangerous

Employ­ers must be care­ful to doc­u­ment care­ful­ly an inves­tiga­tive process par­tic­u­lar­ly if it may have dis­ci­pli­nary con­se­quences such as ter­mi­na­tion. It is also impor­tant to warn employ­ees that con­duct may lead to dis­missal. The below case demon­strates that fol­low­ing prop­er pro­ce­dures in the inves­tiga­tive stage and in terms of dis­ci­pli­nary action is impor­tant and that seri­ous con­duct will empow­er an employ­er to act.

Read v Gor­don Square Child­care Cen­tre Inc T/A Gor­don Square Ear­ly Learn­ing Cen­tre [2012] FWA 7680

In this case an employ­ee at a child­care cen­tre was the sub­ject of a parental com­plaint. A par­ent com­plained that their child was left unat­tend­ed when upset by the employ­ee, was not giv­en break­fast and on anoth­er occa­sion had been allowed to play with elec­tri­cal out­lets. This com­plaint was inves­ti­gat­ed by the child­care cen­tre management.

That inves­ti­ga­tion con­clud­ed that the employ­ee had admit­ted she left the child unat­tend­ed and that this was a fail­ure to super­vise and a breach of child­care reg­u­la­tions and that this was deemed mis­con­duct which was not com­pat­i­ble with the employ­ee’s employ­ment con­tin­u­ing with the employ­er. The employ­ee was sum­mar­i­ly dis­missed on the basis this con­sti­tut­ed seri­ous misconduct.

It was sig­nif­i­cant that the employ­ee was not warned that her con­duct could result in ter­mi­na­tion. Com­mis­sion­er Bis­sett con­clud­ed the employ­ee did leave the child unat­tend­ed and unsu­per­vised. This was a breach of the Nation­al Law and the cen­tres Super­vi­sion Pol­i­cy. Comm. Bis­sett also accept­ed that the employ­ee had pre­vi­ous­ly allowed chil­dren to pay under her recep­tion desk where there were wires.

The employ­ee was informed that her non super­vi­sion of a child was the rea­son for ter­mi­nat­ing her employ­ment. The child­care cen­tre afford­ed the employ­ee pro­ce­dur­al fair­ness in the process of inves­ti­ga­tion because they had pre­sent­ed the alle­ga­tions, allowed her to respond and then made a find­ing which was in turn com­mu­ni­cat­ed to her. The employ­ee was also allowed a sup­port per­son at both meet­ings with the employ­er. While pre­vi­ous dis­cus­sions about per­for­mance did not con­sti­tute warn­ings ulti­mate­ly the Comm. con­clud­ed the sum­ma­ry dis­missal was fair.

5. Don’t be too pedantic

Employ­ers need to be care­ful that they do not apply stan­dards or poli­cies in a way which is unnec­es­sar­i­ly picky. The Com­mis­sion will look at the cir­cum­stances and may apply a more lib­er­al approach to the sit­u­a­tion. In the below case the employ­er held onto a nonex­is­tent dis­tinc­tion between a med­ical cer­tifi­cate and a med­ical diag­no­sis and also imple­ment­ed their pol­i­cy with a lit­tle too much vigour con­sid­er­ing the employ­ees med­ical con­di­tion.

Tales­ki v Vir­gin Aus­tralia Inter­na­tion­al Air­lines Pty Ltd T/A Vir­gin Aus­tralia [2013] FWC 93

The employ­ee brought an unfair dis­missal claim fol­low­ing his ter­mi­na­tion for not com­ply­ing with a direc­tion. The employ­ee was a flight atten­dant and was sub­ject to a style guide out­lin­ing accept­able hair­styles. The employ­ee grew his hair long ini­tial­ly to hon­our his dead moth­er and kept his hair long after he devel­oped body dis­mor­phic disorder. 

The employ­ee pro­vid­ed as many as 8 med­ical cer­tifi­cates con­cern­ing his receiv­ing treat­ment for body dis­mor­phic dis­or­der. The employ­er took issue with the fact that var­i­ous med­ical cer­tifi­cates did not actu­al con­tain a diag­no­sis. The employ­er then took the employ­ee off flight duties as he did not com­ply with the style guide. 

The employ­er gave the employ­ee notice of ter­mi­na­tion and fol­low­ing the employ­ees com­plaint the Human Rights Com­mis­sion con­cil­i­at­ed the mat­ter. The employ­ee returned to work and wore a wig to sat­is­fy the style guide while fly­ing. The issue con­tin­ued how­ev­er the employ­er lat­er ter­mi­nat­ed the employ­ee on the basis he had not com­plied with a require­ment for a time­frame, a treat­ment plan (which he had in fact sup­plied) and was not com­ply­ing with the style guide.

The Com­mis­sion­er con­clud­ed the employ­ee had pro­vid­ed doc­u­men­ta­tion regard­ing his con­di­tion through the 8 med­ical cer­tifi­cates and explained the rea­son his hair was long and uncut. The employ­ee had worn a wig and thus had com­plied with the style guide to the best of his abil­i­ty. There was no valid rea­son for ter­mi­na­tion and no chance for the employ­ee to respond to the issues raised in ter­mi­na­tion letter.

The dis­missal was harsh, unjust or unrea­son­able and the Com­mis­sion­er ordered rein­state­ment and that the employ­er main­tain the con­ti­nu­ity of ser­vice and recog­nise the employ­ees peri­od of con­tin­u­ous service.

6. Attend Fair Work Com­mis­sion Proceedings

If a for­mer employ­ee brings a claim before the Fair Work Com­mis­sion, employ­ers can­not afford to ignore such a claim. Regard­less of size, time and resources employ­ers who ignore a claim run the risk of the Com­mis­sion mak­ing adverse find­ings against them in their absence.

Bargmann v Stil­no­vo Pty Ltd T/​AMurano and Gul­lot­ti [2013] FWC 1080

In this case con­cern­ing an unfair dis­missal the respon­dent employ­er did not attend the sched­uled tele­phone con­fer­ence. Fol­low­ing the con­fer­ence the respon­si­ble com­mis­sion­er, Deputy Pres­i­dent McCarthy wrote to the employ­er con­cern­ing why they did attend. No response was received from the employer.

DP McCarthy then issued direc­tions requir­ing the employ­er to pro­vide an out­line of sub­mis­sions and any wit­ness state­ments. No sub­mis­sions or wit­ness state­ments were pro­vid­ed. On that basis DP McCarthy accept­ed the appli­cant employ­ee’s evi­dence unchal­lenged and found that the employ­ee had been unfair­ly dis­missed. Com­pen­sa­tion in the amount of $3000 was award­ed to the employee.

7. What does this mean?

Employ­ers need to be care­ful in the way they act regard­ing employ­ees they are ter­mi­nat­ing or con­sid­er­ing ter­mi­na­tion in order to avoid sev­er­al of the sit­u­a­tions above. The core theme of all the above is to think first and act sec­ond, employ­ment law is a dif­fi­cult ter­ri­to­ry and as an acces­si­ble juris­dic­tion for employ­ees, employ­ers would be wise to be vigilant.

If you would like fur­ther infor­ma­tion or some advice about your own sit­u­a­tion please con­tact Lau­ra Sowden.