October 2013 – Update

Proper Processes & Practices Prevents Penalties

When two printers punched their supervisor in the head several times but were subsequently found to be unfairly dismissed there were a few surprised faces. Whilst the supervisor had sworn at the employees, Commissioner Wilson found it was not sufficient to warrant assault.

The element of unfairness arose when the employees were not offered a support person during the meetings. Further, the company failed to adequately account for the employee’s language difficulties in their responses to the allegations therefore they were not adequately able to construct their defence.

The Commission found that at the time of dismissal the company had not completed a sufficient investigation to warrant dismissal. If they had suspended the employees to interview other witnesses and gain a more complete view of events, the dismissal may not have been unfair.

Taking into account many factors, including the fact that the employer employed less than 100 workers, the employees were each awarded two weeks compensation

(He v Peacock Brothers & Lac v Peacock Brothers [2013] FWC 7541)

In another recent decision, the Fair Work Commission penalised McDonald Real Estate when its director Mr Michael Choi claimed that the application had a negative attitude because he failed to smile in a company photo. The company also claimed that the Applicant had changed computer passwords to deny sales information to other agents in the office, sent an inappropriate email to staff, was seeking alternative employment and was responsible for excessive downloads over the Christmas period.

Commissioner Bissett stated that for a termination to be valid the reason must be sound, defensible and well founded. The conduct described by the employer may be an irritant warranting warning but by themselves do not provide a valid reason for termination. The Commissioner further stated that being a small business is “no excuse for denying an employee procedural fairness in the dismissal process”.

Whilst the Applicant was only employed for 19 months and was only out of work for one week, he was awarded approximately 5 weeks wages, at his average earnings, in compensation.

(Roberts v McReag Pty Ltd t/a McDonald Real Estate Aspendale Gardens [2013] FWC 5505)

These cases send a strong message to employers to make sure their processes and practices are correct before taking action. Regardless of size, ignorance is no defence.

Contact Nicole or John from Industrial Relations Law to discuss this or any other employment matter.