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    Firing the 'Unfireable': How to dismiss someone and not get sued

    Sep 23, 2019 2:52:23 PM

    Last week Frank Law presented a seminar entitled: Firing the ‘Unfireable’: How to dismiss someone and not get sued.

    This article is what was spoken about...

    The Jurisdiction for Unfair Dismissal

    The Fair Work Commission [FWC] has limited jurisdiction in dealing with unfair dismissal. To be eligible to make an application the employee must:

    1. have completed the minimum period of employment (currently 6 months – 12 months for a small business);
    2. file the application in the FWC within 21 days from the date of termination. Extensions of time may be requested but is rarely given; and
    3. have earned less than the ‘high income threshold’ (which is currently $145,400 per year) or is covered by an Award or an Enterprise Agreement.

    Casual employees generally do not enjoy projection from Unfair Dismissals, but there are exemptions to this rule.

    Harsh, unjust or unreasonable

    Section 387 of the Fair Work Act 2009 [the Act], deals with the criteria the FWC will apply to consider whether or not a dismissal was harsh, unjust or unreasonable. These requirements can broadly be summarised as follows:

    1. whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees);
    2. whether the person was notified of that reason;
    3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct;
    4. any unreasonable refusal by the employer to allow the person to have a support person;
    5. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
    6. and any other matters that the FWC considers relevant

    Harsh refers to a consideration of the various consequences of termination upon an employee’s personal and economic situation; as well as the method and timing of dismissal or the proportionality of the penalty of dismissal given the misconduct alleged. Factors include age, length of service, qualifications, dependents, assets, debts and literacy levels. 

    Unjust usually relates to the truth of the reason for termination or the uneven application of the employer’s standards relating to termination.

    Reasonableness involves a reflection on the investigation or performance management process and whether it is objectively reasonable for the employer to draw the conclusions that support its decision.

    One of the FWC decisions considered at the seminar was that of Woodward-Browne v Qantas.

    Mr Woodward-Brown was a cabin crew member and was searched by Qantas security officials as he clocked off in Tokyo, after flying in from Melbourne. They found 11 chocolates in his bag and five in his pockets. He was also carrying two individually wrapped biscuits.

    The 57-year-old flight attendant was stood down while a three-month investigation took place. He was then sacked, in keeping with Qantas's "zero tolerance" policy to theft.

    The FWC came to the following conclusions:

    Did Qantas have a valid reason?        

    Yes - The FWC found that Qantas did have a valid reason namely the breach of company policy regarding theft.

    Was the process fair?

    Yes - The FWC found Qantas did correctly follow the disciplinary and investigation process and it was fair.

    Was the decision harsh, unjust or unreasonable? 

    Yes - The FWC found the decision to terminate was harsh for the following reasons:

    1. Theft’ requires intentional conduct, evidence supports the fact that the employee would put the chocolate/biscuits in his pockets while serving the passengers, and then give randomly out to passengers during the flight.
    2. Evidence also supports the fact that the chocolates / biscuits that are left-over are usually discarded by Qantas – i.e. they are ‘unwanted goods’
    3. Evidence of unblemished employment history (more than 20 years), good character, loyalty to Qantas and age, supported the decision that the dismissal was harsh.

    Mr Woodward-Brown was therefore Unfairly dismissed

    What was the remedy?

    The FWC found it was for Mr Woodward-Brown to be reinstated (as opposed to receiving compensation).

    Take away

    In summary, here are the four tips to ensure your business is protected from Unfair Dismissal claims:

    1. Have a valid reason
    2. Have a process and follow it
    3. Make sure the process is fair
    4. Put everything in writing

    If you have further questions, please contact Philip van den Heever at philip@franklaw.com.au.

    This is not legal advice. 

    Photo by Suhyeon Choi on Unsplash