A Queensland-based business owner who fired an injured employee for slagging him off eight months earlier has been ordered to pay $4,000 in compensation for unfair dismissal.
Small-business employer Tag Turfing warned one of its workers in February 2018 for allegedly “talking negatively and slandering” his boss in a conversation with a customer.
The worker, who sustained a knee injury requiring an operation shortly after, was placed on a three-month probation, but was forced to take time off work for recovery, updating his employer monthly with his medical advice.
By October 2018, more than eight months later, the worker had recovered and enquired with his employer about returning to work, but was told via text message he was being dismissed for his earlier transgression.
“I was in contact with fair work and got advice your actions warranted an instant dismissal but as u [sic] were on leave for rehab didnt [sic] follow thru [sic] at the time,” the employer told the worker.
“Your lack of responsibility to Tag during rehab also demonstrated it is best you not continue employment with Tag.”
The employee filed for unfair dismissal, claiming he had been terminated based on a matter which had already been dealt with months prior, and submitting the business was continually changing the reason for his dismissal.
The business owner argued he wasn’t aware the worker’s behaviour was grounds for summary dismissal for serious misconduct when it occurred, and so opted for a warning instead.
But while accepting the worker did engage in the alleged conduct, Fair Work Commissioner Chris Simpson ruled the reason for dismissal was nevertheless invalid.
“The misconduct had already been dealt with in the form of a warning, and … no further misconduct occurred,” Simpson said.
Simpson also found the worker did keep his employer in the loop regarding his recovery, denying this was a valid reason for dismissal.
Tag Turfing will have to pay $4,000 compensation within 21 days, but Fay Calderone, a partner at Hall and Wilcox, says things “could have been a lot worse”.
“They’ve gone down the unfair dismissal path, but they could have arguably said it was adverse action because the guy had gone off sick,” Calderone tells SmartCompany.
Calderone says employers need to “use it or lose it” when presented with conduct they believe is grounds for summary dismissal.
“You can’t sit on it, and you can’t say you didn’t realise at the time it was misconduct,” she says.
“You can’t just go back eight months later, particularly after someone has been injured.”
SmartCompany contacted the owner of Tag Turfing for comment but did not receive a response prior to publication.