industrial relations, Legal

Darwin worker wins his job back after criminal charges led to his dismissal

Emma Koehn /

A Northern Territory hospitality supplies business has been ordered to give a worker his job back after being found in the wrong for firing him while he was awaiting a criminal trial.

The employee was engaged as a driver in Darwin for Reward Hospitality, a national kitchen and hospitality supplies business, until he was dismissed in October 2017.

The events leading up to his dismissal involved him being charged with a criminal offence not related to his employment. In May 2017, the worker was arrested for the offence. While in custody, he says he was visited by his director manager and informed he would be able to return to work when he was granted bail.

However, when he presented for work in July after secured bail, the worker was told he could not attend and was stood down on unpaid leave.

In October, the employer sent the worker an email and letter via regular post, informing him “as you have now been absent from work on unpaid leave for over five months, we have reached a point whereby the Company cannot continue to cover you long-term vacancy at work”.

The worker said he didn’t receive the letter or email for some time, as a lot of junk material came through his inbox and he used a post office box, rather than his home address, for mail.

In reviewing the case, Fair Work Commissioner deputy president Michelle Bissett found that it was likely the worker only actually came to view the notice of his dismissal in November, even though the company sent the note in October.

She found that when the worker was sent on unpaid leave in July, there was no suggestion he had to stay in regular contact with the employer. When the business didn’t hear back from the worker about his dismissal, it didn’t follow up with him.

“I am satisfied that there was no attempt to contact the Applicant when he had not been heard from by 31 October 2017,” Bissett found.

In her decision, Bissett found there was no justifiable reason for dismissing the applicant in the first place. She said not only had the employer denied the worker procedural fairness in the lead-up to his dismissal, a termination letter should never “be left to the vagaries of the basic postal service” and should have at least been delivered by registered post.

The commission heard that the worker believed he’d be able to come back to the job once he had secured bail, and it was the employer’s decision to stand him down without pay.

Because of this, the employer should not have said it was dismissing him because his long-term absence was causing problems.

The business was ordered to reinstate the worker to his previous role.

SmartCompany contacted Reward Hospitality for comment but the business said it was unable to comment on the case.

The employee could not be contacted for comment.

Be careful with “absolute guarantees”

Workplace lawyer Peter Vitale says the result of this case indicates businesses “need to be wary about making absolute guarantees in circumstances which are changing”. 

He says in this case, the assurance to the employee that he was able to return to work once securing bail meant the worker had an expectation that he would be able to continue with his employment.

I don’t think it’s prudent to be making blanket proposals to staff when the circumstances could change in situations like this,” he says. 

While Vitale says “situations like this don’t arise every day”, it does reveal it’s important for employers to seek advice before making any decisions about the future of a staff member if they need time off from their position for a reason like a legal dispute outside of work.

Employers could be forgiven for not having firm processes in place for these things, but in those circumstances they should be getting appropriate advice for what the next step is,” he says. 

Following due process includes making sure employers document all communications with the employee, including in cases where they have been unable to reach them, he says.

If the situation arises where a termination letter has to be sent by post, “the sensible thing would be to send that letter by registered post”, he says.

NOW READ: WA business ordered to pay worker $20,000 in annual leave payout despite insisting it didn’t owe him anything

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Emma Koehn

Emma Koehn is a former senior journalist at SmartCompany.

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