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What you can learn from unfair dismissal cases that get dismissed

Patrick Stafford /

Businesses are terrified of unfair dismissal cases.

For many it can be an administrative burden. If they want to get rid of an employee, there are a certain number of checks and balances they have to follow – a bureaucratic nightmare.

Unfair dismissal case decisions have ramifications for businesses of all shapes and sizes, but there is some good news. For as many cases the Fair Work Commission finds in favour of, there are scores that are dismissed.

Recently, SmartCompany analysed 10 unfair dismissal cases that were successful for the applicants and what they mean for your business. We thought we’d do the same again – but this time, we’re going to analyse unfair dismissal cases that have lost.

Why? Because the losing cases have lessons for businesses too. There are good examples here for how you should conduct yourself during these types of cases if you want to achieve a successful outcome for your business.

Here are unsuccessful unfair dismissal applications you can learn something from:

1. Working for your clients

Recently a company lost an unfair dismissal case in which two employees planned to start their own business. Businesses certainly can’t stop any aspiring entrepreneurs – but as this case shows, breaking the rules can certainly get you in trouble.

Brandon Electrical was found to be in the right when it dismissed an electrical apprentice who performed additional work for a client of the company, without permission.

Timothy Monteith argued he was unfairly dismissed. But the company was found to be in the right when it dismissed him, as he was performing unauthorised work.

While businesses can’t crack down on employees for starting their own businesses outside of work hours – especially if they aren’t breaking any rules – working for clients outside of specified work hours can be a breach of workplace contracts.

As long as the employee has gone outside the parameters of your agreement, then this case shows termination is definitely justified.

2. Didn’t pay the fee

Employment experts often complain many cases are lost because of technicalities, or procedure-based faults. That is, one party in a case hasn’t followed something to the letter. As a result, they lose the case.

It happens more often than you’d think. Like in this case which occurred earlier this year. The applicant was emailed by the Fair Work Ombudsman about a registration fee worth $65.50 they were required to pay.

They didn’t pay. And so the application was dismissed.

This is a simple case but it represents a key lesson for employers, too. A quick browse of Fair Work decisions will show you more than a few businesses which have simply failed to turn up to hearings. This means the Commissioner involved may often rule in favour of the applicant, simply because there is no other evidence presented.

Stay on top of correspondence. Don’t let it happen to you.

3. You can do something wrong and still win

Unfortunately, it’s common for businesses to make mistakes with regards to pay and other requirements. As the Fair Work Ombudsman has pointed out, these are often inadvertent and fixed right away.

And as this particular case shows, they don’t necessarily have an impact in an unfair dismissal case.

The employee, Benjamin Crank, was fired from his role after being given notice to improve. In response, he pointed out that he had complained about deficiencies in records and payment of entitlements, including annual leave and superannuation.

But the Commissioner found this didn’t matter in the case. It found there was an absence of HR specialists in the business and the owners had to do a lot of the paperwork, which resulted in some of these problems.

Just because these problems existed didn’t mean the application could be approved. If, say, Crank had been fired for complaining about these issues, then that would be a case. But that didn’t happen.

If you’re in an unfair dismissal case, don’t worry about some flaws here and there. As long as they aren’t the basis of the case, they may not affect proceedings as much as you think.

4. Didn’t actually terminate employment

This is a strange one. An unfair dismissal claim – from someone who was never fired.

In December 2010, Stephen Baulch injured his back and was unfit for work for two months. But soon after, a workplace injury claim was rejected, stating that Baulch was fit to return to work.

Baulch said his boss, Mr Armistead, said “there’s no work for you”. Armistead disputes this, arguing instead he said that Baulch couldn’t work if the medical certificate said he couldn’t.

“I’ve been instructed not to make any more payments by the insurer,” he said – and denied that he had terminated Baulch’s employment.

So while the Commission found Baulch was indeed planning to terminate Baulch’s employment, he never had the opportunity to. As a result, the application was dismissed.

But while this was successful for the business, it represents a key lesson – you need to be as clear as possible when providing information on employment. You never want to “fire” someone by mistake.

5. No documents were filed

While plenty of unfair dismissal applications have been upheld because of a lack of paperwork, there are even fewer that go the other way.

In this particular case, the application was required to consist of several documents, such as an outline, witness statements and any other material. It wasn’t done. The applicant also failed to attend the non-compliance hearing and provide any other details as well.

Once again, the lesson for small businesses is clear – compliance is necessary. If you want to have a good chance at winning a case, then you need to make sure all your documents and applications are in order. Don’t shirk on this responsibility – or you may end up with a ruling not in your favour.

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Patrick Stafford

Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.

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