
By Mike Toten Freelance Writer
An employer’s over-reliance on a scanning-based attendance record system, plus a lack of procedural fairness in other ways, resulted in an employee being unfairly dismissed and awarded compensation of more than $46,000.
FACTS OF CASE
The employee was the Manager of several stores in different cities and towns for a retail chain. The employer required him to record his working hours by using a finger-vein (as distinct from fingerprint) scanning system.
The employer promoted him to State Regional Manager for eastern and southern NSW. Before taking up the position, he took two weeks’ leave at short notice to visit his daughter overseas, who was in hospital. His new role commenced during that period of leave because a replacement employee had taken over his previous job.
When he returned from leave, the employer told him not to return to work but instead to attend a meeting. At that meeting, it was alleged that he had failed to sort out some salary/relocation issues for employees before taking leave, resulting in “head office having to get involved”. The employer withdrew his promotion contract and offered him a lesser Showroom Manager position within one store, but the employee claimed his new position had already commenced.
Two days later, the employer dismissed him in a phone call, claiming it had just become aware of attendance record discrepancies. The claims were that the recording system showed that he had failed to scan off several times and a store Assistant Manager had claimed he left the store early without authorisation three/four times per week.
However, there was evidence that the employer was already aware of glitches in the attendance recording system, as it allowed managers to approve any variations or missing time sheets, and occasionally didn’t work. Also, records did not support the claim that he kept leaving work early. The employee claimed that he left in order to visit the other stores he managed and remained in phone contact, but the employer refused to provide the dates he allegedly left early, so he could not back up that claim.
DECISION
The Fair Work Commission (FWC) found that the employer did not provide the employee with an opportunity to respond to the allegations against him. Nor had it given him any prior warnings. It rejected the employer’s claim of dismissal for performance-related issues because the employer had just promoted him. The contract for the promotion had already commenced – it had a specific provision that it would commence when a replacement employee was appointed to his former job -- but the employer had not adjusted his pay and entitlements.
The FWC found the employee was unfairly dismissed and awarded him compensation of $46,218, equivalent to four months’ salary.
WHAT THIS MEANS FOR EMPLOYERS
If proposing to dismiss an employee for poor performance, you must have reliable objective evidence to back up your claim. You must then present that evidence to the employee and give him/her an opportunity to respond to it before making a decision whether to dismiss.
In this case, the employer’s “evidence” was unreliable, and it did not warn him first or provide any opportunity to respond. Instead, it decided to dismiss him and expediently “manufactured” some reasons.
As with many other cases, the FWC’s calculation of compensation payable was based on its estimate of how much longer an employee would have remained employed if the employer had followed correct processes.
READ THE JUDGMENT
Bradley Curran v Nick Scali Limited [2024] FWC 1585 (18 June 2024)

Mike Toten Freelance Writer
Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management