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By Gaby Grammeno Contributor
A Commission has ruled an employer’s lack of procedural fairness means it must compensate a worker it summarily dismissed, highlighting the need for professional advice on the best way forward in such cases.
The worker was employed as a casual with a small business designing and producing residential and commercial furniture.
She was dissatisfied with aspects of her employment, including late payment of superannuation and her wage rate, which she considered fell below market rates. Though her boss had indicated that he wanted to make her role part time when she returned from holidays, she wanted to remain employed as a casual.
She had struck up a friendship with an employee of a long-term supplier, and before she went on leave, she discussed the possibility of alternative employment with the friend and asked her ‘to see what was out there’ on her behalf.
While the worker was on holidays, the friend emailed a colleague from a rival employer saying she ‘might have someone who is looking for a new role’ and copying in the casual worker at her work email address, to which the worker had access while on leave.
The competitor contacted the worker the same day and invited her to forward a CV. She also sent her an online calendar invitation to meet at a restaurant, again using her work email.
The worker’s manager had access to her work emails and came across this correspondence.
On her return from holidays, he told her she’d broken his trust, her position had become untenable and he had no option other than to terminate her employment, effective immediately.
She applied to the Fair Work Commission, alleging that she’d been unfairly dismissed and seeking financial compensation.
In the Commission
The employer’s position was that it dismissed the worker on the grounds that she’d reached out to one of its suppliers asking the supplier representative to look out for job opportunities for her, that communications about this were facilitated via company email, and that she’d been in contact with a direct competitor about a job interview on the day she was due to return to work, but had lied and said she was still on holidays.
The employer dismissed her without notice or warning and sought to rely on the ‘Summary Dismissal’ section of the Small Business Fair Dismissal Code.
The worker’s account of the circumstances differed somewhat – she argued that she’d received the unsolicited email from the competitor while on leave, that she hadn’t asked for the message to be sent to her work email, she didn’t respond using her work email, and on her return from holidays she’d been immediately handed a termination letter.
She said that when she tried to explain, the manager had said ‘I don’t care, I don’t believe you. You’re fired’.
She also said that even before she went on holidays, she felt the boss was ‘trying to push her out the door’ by employing an intern in the office.
Commissioner Alana Matheson accepted that using employer resources and an employer’s supplier relationship to seek out alternative employment with a direct competitor may, prima facie, constitute wilful or deliberate behaviour inconsistent with the continuation of the contract of employment, and that such conduct would fall within the definition of ‘serious misconduct’.
She also accepted that the employer genuinely believed the worker had engaged in such conduct and that this was sufficiently serious to justify immediate dismissal.
Commissioner Matheson then had to consider whether the employer’s belief was based on reasonable grounds.
While it was clear that the worker’s relationship with the manager had deteriorated significantly, the manager did not have a basis for the belief that the worker had used work time or email for the purposes of her job search.
He’d also decided her dismissal was justified and prepared a termination letter before giving her any opportunity to respond to his complaints.
Moreover, at the time of her termination, he had no basis for any belief that she’d set out to disparage or harm the company’s interests by engaging with the supplier or competitor, eg by misusing confidential information or intellectual property.
Commissioner Matheson took the view that the worker’s conduct did not give rise to a valid reason for her dismissal. She also observed that procedural fairness requires that a person be given an opportunity to respond to any allegation put to them, before a decision is made to sack them.
Having considered the matters in section 387 of the Fair Work Act 2009, the Commissioner was satisfied that the worker’s dismissal was unjust, as she was not given a genuine opportunity to respond to the employer’s concerns before the decision to dismiss her was made.
She was ‘simply an employee who had become dissatisfied with her employment and had approached her network in the industry, in her own time, to look for other opportunities’.
The Commissioner did not make findings of misconduct, and was satisfied that an order for payment of compensation was appropriate, as the worker did not wish to be reinstated.
In the circumstances, the Commissioner found that but for her dismissal, the worker would only have remained in her employment for her notice period of four weeks. She ordered the employer to pay the worker pay $2,600 less tax in lieu of reinstatement.
What it means for employers
The case highlights the pitfalls for employers who believe they have grounds to summarily dismiss a worker. In such cases, it pays to seek professional advice, such as that available from Business NSW’s Workplace Advice Line, about how to proceed.
