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:
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:
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:
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:
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