Unfair dismissal is a big problem for businesses, and mostly because they don’t understand it. It’s complicated, confusing, and the outcome of any case seems to balance on a number of varied and delicate factors.
But unfair dismissal applications don’t always have to fold in the applicant’s favour. The Fair Work Commission rebuffs far more applications than it approves.
Last week, SmartCompany analysed five unsuccessful unfair dismissal applications and extracted lessons for small businesses.
There are too many to just leave it at five. So here’s another five – and some more good advice for SMEs.
Application took too long
One thing businesses tend to forget about the Fair Work Commission is that it is a stickler for deadlines. You need to get your forms in on time, and then pay your fees on time as well. If you aren’t proactive in asking for extra time if you need it, you won’t win.
This case from earlier this year was denied because the applicant simply took too long in putting in his application.
He was dismissed on January 8, 2013, and was supposed to file the application by January 29. Instead, it was processed during the middle of February.
The FWC was not satisfied there were exceptional reasons for the delay, and so it was dismissed.
While the company may have walked free in this instance, the opposite can happen often enough where businesses fail to put in forms on time. So don’t let the same thing happen to you – be prompt in your defence.
Follow procedures to the letter
In early 2012, Mostafa Hassan was terminated from his employment at ANZ. The bank claimed he was terminated for misconduct.
Some of the accusations included writing “get stuffed” on an annual leave form for another employee, failing to “act reasonable” and making inappropriate remarks about other staff members – including referring to their perceived attractiveness and remarking on their ethnic origin.
Now, the Fair Work Commission’s finding is crucial – it decided the termination was not unjust, as this type of behaviour had clearly breached corporate policy. It was not unreasonable, as the applicant didn’t acknowledge any inappropriate behaviour.
The one question was whether the termination was harsh – because the company had been aware of the behaviour, but hadn’t taken any action to “counsel, advise or retrain” the applicant.
But the FWC found that considering the applicant’s “lack of insight”, the decision to terminate the employee was not harsh.
It’s important to remember all cases are different, and that what happens here may not necessarily apply to your own company.
But this case clearly shows a situation where an employer followed all the steps of unfair dismissal, and rightly ticked all the boxes – the dismissal was not harsh, unjust nor unreasonable.
When you’re considering terminating an employee’s job, those are the three you need to check before taking any action.
There is always leeway
Even though Fair Work sticks to the letter with regard to procedural fairness, this particular case shows there is some capacity to make a mistake or two and still come out on top.
Ambulance Victoria terminated a pilot after it decided he took too long in responding to a call. He was provided with notification of an investigation, and he was given an opportunity to respond as well.
There was just one problem – in this notice, few details were given about what the allegations were. “Even in the particular circumstances of this case,” said Fair Work, “Ambulance Victoria should have provided…more details of the allegations together”.
But ultimately, it didn’t matter. Fair Work found Ambulance Victoria had conducted itself appropriately and followed all the rules. And given the seriousness of the matter, the unfair dismissal was found to be upheld.
This doesn’t mean you can break a law. But it does show when it comes to Fair Work, in certain circumstances, they may cut you some slack.
Get your work done early
In 2012, construction group Best Bar dismissed an employee for a rather serious safety violation – the employee removed a safety switch, which then represented a hazard for other employees.
The Fair Work Commission found this was a safety violation; made worse by the fact the employer had trained this particular employee well in safety procedures.
But the judgment made a key point – the company didn’t give any details about the investigation of the breach to the commission, so it was unable to make a view as to whether the termination was “unreasonable”.
However, it also pointed out something all businesses should take note of – it’s not the commission’s responsibility to determine whether it would have reached the same conclusion as the employer.
Instead, it just needs to decide whether the decision was valid. And considering the conduct here was serious enough, the termination was indeed just.
The key lesson here? It pays to have all your safety policies up to scratch, so that when a breach does happen, you’ll be ready to respond. Then all you need to do is make sure you follow the Fair Work procedure for a dismissal due to serious misconduct. Do the work early, and you’ll be thankful.
A good example of serious misconduct
In 2012, Toyota terminated the employment of a worker – Roderick Macdougall – whose job it was to deal with government customers in relation to car sales. Last September, Macdougall had an argument with a client and swore at him, in earshot of other employees.
The Fair Work Commission found this behaviour was serious. Although Macdougall said he didn’t swear at the specific person, the Commissioner didn’t care for this argument – the words were directed at the client in general.
And, as the Fair Work Commission points out – the conduct had an effect on profitability. A letter sent to the Toyota dealership from the customer’s employer suggested Macdougall’s performance was “a reflection on…customer service”.
Remember, employers are able to dismiss employees for serious misconduct. Fair Work says employers can dismiss someone for “serious misconduct” that warrants dismissal without warning.
While the language remains vague, that can actually be in your favour. This case clearly provides a good example of what constitutes serious misconduct – and one that you should keep in mind.