Legal

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

Emma Koehn /

A former nail technician at a Melbourne beauty salon has won $20,000 in compensation after her employer tried to fire her two hours after she handed in her resignation, which she says she was forced to submit because she was being bullied for chasing unpaid wages.

The staff member at Solene Paris Beauty, a salon in Melbourne’s Stud Park Shopping Centre, brought unfair dismissal proceedings against the business after her employment ended in March 2017.

She said she had resigned on March 22 after being “bullied” by the business for raising concerns about her wages. The Fair Work Commission accepted this and recognised that she had contacted the Australian Taxation Office (ATO) and Fair Work Ombudsman (FWO) to attempt to recover $7000 in superannuation payments and $17,000 in backpay from the business.

Two hours after the worker tended her resignation, the business sent her an email saying she was actually being fired. The employer claimed she had backdated a medical certificate to cover a work absence and this caused her dismissal because it amounted to a “fraudulent offence”.

However, the staff member rejected that suggestion that she had changed any medical certificates and the Commission found the business produced limited evidence to prove this had ever occurred.

In deciding the case, Fair Work Commissioner Michelle Bissett found the business had given no solid reason or procedural fairness by writing the worker a dismissal letter. She instead found that the company had opened itself up to unfair dismissal proceedings by firing the worker after she had resigned.

The Commission accepted the worker had resigned but said the employer’s decision to send a dismissal note after that happened rendered the resignation invalid, meaning the employee had a right to launch an unfair dismissal claim.

Finding the dismissal was harsh and unjust, the Commission ordered the business to pay the former worker $19,206 plus 9.5% superannuation.

Staff member resigned? Document everything

This case highlights that no matter the reasons for a staff member’s resignation, a business should never counter a resignation with a dismissal letter, says director of Workplace Law, Shane Koelmeyer.

“This kind of thing is very rare — but once you go down the path of termination, you are opening yourself up to unfair dismissal proceedings. If you get an employee who resigns, you should just grab it and go, ‘okay’,” he says.

Businesses should take care to follow due process if they are planning on dismissing a worker, including documenting any performance issues over a period of time so that workers have a chance to respond, he says.

In this case, the worker claimed they had been forced to resign and this was ultimately accepted by the Commission.

However, Koelmeyer says there are cases where a business may strongly disagree with the reasons a worker is giving for a resignation, which means they should read all correspondence carefully and record any objections to a worker’s claims at the time they resign.

For example, if a worker says in their resignation letter that they have been “forced” to resign but you disagree, it’s possible to accept the resignation but reject the reason for it, he says.

“Read any resignation and the reasons for it carefully. If someone says they are planning to resign, ask for it in writing,” Koelmeyer says.

It’s essential for a business to respond to any claims — such as a manager forcing a worker to resign — with a rebuttal at the time the worker resigns. This information is very valuable if the case does come before the Fair Work Commission, because the employer can demonstrate the reality of the situation and outline why they believe they were in the right, he says.

“If you do this, you can then later say, ‘we rejected those claims at the time’.”

SmartCompany contacted Solene Paris for comment but did not receive a response prior to publication. The former worker could not be reached for comment.

NOW READ: Manager loses unfair dismissal appeal after being fired for telling colleague to “show them your tits”

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Emma Koehn

Emma Koehn is a former senior SmartCompany journalist.

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