By Mike Toten Freelance Writer

After an employee refused to work further overtime after not being paid for previous overtime, there was a heated exchange between him and his boss. The employer then dismissed him the next working day without giving a reason or following any other of the required procedural steps. 

Facts of case

At the end of a work shift, the employee told the employer’s General Manager that he would not be working any further overtime because the employer had refused to pay him for previous overtime worked. The Manager reacted angrily, implying that if the employee and his co-workers were more productive, overtime should not be necessary. There was an argument between the two, and the Manager told the employee his employment would be terminated the following work day.

When the employee tried to contact another manager to clarify whether he was being dismissed, the Business Services Manager confirmed it. The employee then lodges a claim of unfair dismissal.

Decision

The Fair Work Commission (FWC) found that the employee was unfairly dismissed because the employer failed to observe the following procedural steps:

  • Did not provide any reason for dismissal, and therefore did not have a valid reason
  • No previous warnings or any evidence of unsatisfactory performance
  • No opportunity for the employee to respond to the reason for dismissal
  • The abrupt nature of dismissal was financially and emotionally stressful for the employee
  • Failed to pay accrued termination entitlements

The FWC awarded compensation of eight weeks’ pay, taking into account that the employer went into voluntary administration less than three months later.

What this means for employers

If the employer’s reason for dismissal was that the employee refused to work overtime that he believed he would not be paid for, that is not a valid reason for dismissal.

Otherwise, this case is a straightforward example of where an employer failed to comply with the procedural requirements for implementing a dismissal fairly.

Read the judgment

Mr Michael Abela v Surelinc Services Pty Ltd - [2024] FWC 1975 | Fair Work Commission