Five lessons from some of the most important unfair dismissal cases of 2015

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Unfair dismissal cases can be a legal minefield for small businesses that do not necessarily have the money to pay for a workplace lawyer.

The legal system is difficult to navigate at the best of times, whether it’s reading a section of the Fair Work Act or figuring out how to submit evidence to the Fair Work Commission.

With this in mind, SmartCompany has taken a look at some of the most important unfair dismissal cases of 2015.

Here are five lessons to be learnt from the commission’s rulings this year.


1. In some circumstances, a resignation can be treated as a dismissal


In October a labourer was awarded $37,500 in compensation after he resigned due to his salary being cut from $75,000 to $60,000.

Will Snow, senior associate at law firm Finlaysons, told SmartCompany that while the worker resigned, his 20% pay cut was seen by the Fair Work Commission as a dismissal.

“The commission found that it was a dismissal in that he had no other choice but to resign,” Snow said.

“You can demote someone lawfully by reducing duties and pay but if that reduction is found to be ‘significant’, then a dismissal will be found to have occurred.”


2. Jokingly threatening violence does not constitute misconduct


Last month a former employee at Visa Global Logistics was awarded $21,000 after she was sacked for allegedly telling a co-worker to “go and punch Stacey in the face”.

The woman argued the comment was meant as a joke and taken out of context.

As a result, the Fair Work Commission found there was not a valid reason for dismissal despite hearing evidence of previous arguments between the worker and fellow staff members.

Employment lawyer Peter Vitale told SmartCompany the woman’s behaviour fell short of misconduct because it did not constitute “an actual threat of violence” in the eyes of the commission.

“The employer also relied on a previous warning given to the employee for using offensive language, but the commission found that warning was not appropriate,” Vitale said.

“In this case, as far as the law is concerned, the employer simply got it wrong.”


3. Workers rarely win their jobs back but it does happen


In October, a McCain Foods employee won his job back after he was fired for fighting in the workplace.

The Fair Work Commission heard that while the man did not strike his co-worker, he did have hold of the other man’s clothing.

The worker successfully argued he acted in self-defence and, as a result, the commission ruled the dismissal was “disproportionate” to his conduct.

Employment lawyer Peter Vitale told SmartCompanythat while the Fair Work Act designates reinstatement as the primary remedy in an unfair dismissal case, very few disputes result in reinstatement being ordered.

“In this case, the commission considered the employee’s lengthy, unblemished service, his age and the difficulties he might face finding other employment, and the fact that he did not initiate the incident,” Vitale said.


4. Workplace training is essential


A former Coles employee from South Australia was awarded more than $4000 earlier this year after allegedly being involved in a physical and verbal altercation with two suspected shoplifters.

The woman took the matter to the Fair Work Commission, arguing she shouldn’t have been sacked and could have handled the situation better had she received better training.

While the commission found there was a valid reason for the employee’s dismissal, the commission ruled the sacking was harsh due to a “lack of notice or pay in lieu”.

Warwick Ryan, partner at Swaab Attorneys, told SmartCompany the case highlights the importance of staff training.

“Policy is one thing, but I think staff training is important because what was obvious in this case was emotions got in the way,” Ryan says.

“I think training helps in that regard.”


5. You can’t dismiss an employee who is temporarily absent due to illness or injury


A former employee at a business specialising in the design and fabrication of windows and window frames was awarded $50,000 by the Fair Work Commission this year after he was sacked for taking extra time off work to recover from surgery.

The employer also failed to attend the commission’s hearing and did not submit any written evidence.

The commission decided termination was considered to be “manifestly harsh, unreasonable and unjust”.

Sarah Lock, principal lawyer at Workplace Law Group, told SmartCompany the commission found there was a complete lack of procedural fairness given to the employee in this case.

“Employers need to ensure that they have proper policies, processes and procedures in place so that employees know exactly what is expected of them when applying and taking personal leave,” she said. 


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