Business ordered to rehire worker it sacked for operating a side business on company time: A lesson in proper dismissal procedure


A Melbourne-based businessman has conceded he jumped the gun in firing a worker for operating a side business on company time, after being ordered to rehire her last week.

The Fair Work Commission (FWC) has ruled cabinetry and hardware importer Lek Supply unfairly dismissed sales associate Abigail Jackman in April over allegations she stole from the company by working on her own business.

Jackman started her own business, Royal Scent & Co, while she was on maternity leave last July, selling candles, as well as bath and body products.

Lek alleged when she came back to work Jackman was taking calls and fielding text-based customer queries on her phone during business hours.

However, despite finding Jackman did conduct her private business during her working hours, commissioner McKinnon ruled the manner in which Jackman was dismissed was “harsh”.

McKinnon found Jackman was given no opportunity to respond to the reasons for her dismissal, which occurred without notice in a meeting she was not told the purpose of.

“It was a disproportionate response to a valid concern, which had only recently become apparent,” McKinnon said.

“A warning would have been a more appropriate response.”

Jumping the gun

Speaking to SmartCompany, Lek Supply chief executive Ben Lek conceded he jumped the gun by dismissing Jackman in the way he did.

“The issue was created from her and it was quite a major issue,” he says.

“It should have never happened, but at the end of the day, we didn’t follow the steps for dismissing her properly.

‘“With a small business like ours, not having legal representation to know all the ins and outs is probably where we made our mistake,” he says.

Lek does not intend to appeal the decision and says he will welcome Jackman back to the business in the coming weeks.

Shane Koelmeyer, director at Workplace Law, says the case is a classic example of a business not affording a worker procedural fairness he has encountered often.

“Where the employer fell down here was in not affording the employee the opportunity to respond to the allegations,” he tells SmartCompany.

“Best practice would have been for the employer to put the allegations to the employee in writing and given her the time and chance to explain or respond.

“The employer’s decision should have then only been made after receiving and reviewing those responses and explanations,” he says.

“Worst case scenario”

Koelmeyer said if the business had sought advice the matter could have been rectified within a few days, but instead, the business has received what he describes as the “worst case scenario” in unfair dismissal cases.

“[It] may be seen by the other employees as the employer’s judgment or decision-making being undermined or questioned — which can make it harder for them to manage their employees in the future,” he says.

McKinnon found against Lek’s argument that Jackman was summarily dismissed, which may have justified the lack of notice.

Jackman was paid one week’s wages in lieu of notice and was not required to work the notice period, while there was also no mention of “serious misconduct” (crucial for summary dismissal) in the letter of termination.

Garry Bircks, an industrial advocate with Just Relations consultants who represented Jackman, says his client is happy to return to the company.

“She had no problems with her workmates,” Bircks tells SmartCompany.

Bircks said Jackman was content with the decision, but she was disappointed the FWC decided not to award lost wages.

“The decision is in her favour, but she’s not happy with it to the extent that there has been no award of lost wages … there have been substantial losses as a result of the dismissal,” Bircks says.

McKinnon decided not to award lost wages because of the weak financial position of the business and because Jackman’s conduct was the “sole catalyst” for the dismissal.

NOW READ: Melbourne business ordered to pay worker $20,000 for firing her after she resigned

NOW READ: Facebook posts prove to be key evidence as Fair Work throws out employee’s unfair dismissal bid


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Ed Shyed
Ed Shyed
3 years ago

So is the employer going to be screwed over for welcoming her back with a written warning that no personal business be conducted during working hours, what was the commissions view on that?

As one who is highly critical of the (un)Fair W/C, I must admit if there was no formal warning issued to Jackman, than their decision sits well with me.

I’ve been in a situation about 15 years ago, when an ISP hired me to 2ic its network ops, running a small webhost business at the time, I was told by the CEO he was quite happy for me to run my businesses if I needed to (take calls, act on requests etc) during my shifts providing I was up to date with my own job, the job never took second place, and I didnt use company resources.

It was a win win, because web hosting was not what his ISP concentrated on, in the end, I ended up taking over his hosting side which increased my business substantially 🙂

If I let my work that he was paying me for slide to do my own, I would have expected to get told no longer allowed to conduct my private business during rostered hours, and dismissal if i persisted. These days too many bludgers just go crying to FWC even though they are in the wrong. theres *nothing* harsh in being sacked for NOT doing what your paid to do, because unemployment ni this country is so high there is always a person out there who WILL do the job expected of them, something one day these union run FWC’rs will realise.

3 years ago

As they say, measure twice before cutting once.

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