Australia: Dismissal harsh and unreasonable due to the union advice

A recent decision has highlighted the importance of employers being able to satisfy all three elements in dismissals to prevent them from being held to be unfair.  Many employers labour under the assumption that having a valid reason for termination is sufficient, but a recent decision of the Fair Work Commission (the “FWC”) is a reminder that even with a valid reason, a dismissal can still be harsh and unreasonable and therefore, overall, unfair.  That is, for a “fair dismissal” both substantive and procedural fairness must be exhibited with employers needing to demonstrate that a dismissal is not harsh, not unjust and not unreasonable.  In this case the decision that the dismissal was unfair was attributable to the United Workers Union (“UWU”) giving an (ex) employee (the “Applicant”) advice that was “plainly wrong”. The termination of the Applicant's employment due to the Applicant relying on that advice was harsh and unreasonable despite it being founded on a valid reason.

Background

The Applicant, a member of the UWU, commenced employment with the Respondent in February 2018 as a Food, Beverage and Gaming Attendant. On 25 June 2020, the Applicant was asked by her supervisor to cover her nose ring and remove some ear studs. She was also caught by the security cameras using her phone while working at the poker machine cash booth.

On that same day, the Applicant was asked to attend a meeting with her manager to discuss her work performance. The Applicant refused to attend the meeting on the basis that the Respondent had to provide her with the reasons for the meeting in writing. It is important to note that the UWU was at that time undertaking a campaign in the hospitality industry, which encouraged members to ask for any allegations to be provided in writing before attending any meeting with an employer. These instructions to the Applicant to seek the reasons for the meeting in writing, were confirmed by an official of the UWU who was at the Respondent's premises at that time (the “UWU Official”).

The Applicant was repeatedly asked to attend the meeting but continued to refuse including through the UWU Official.  Consequently, the Applicant was stood down for failing to follow a lawful and reasonable direction, the Respondent having informed the Applicant why the direction was lawful. The Applicant was invited to a meeting on 29 June 2020 to discuss her refusal to attend the meeting and was offered to bring a witness or representative.

The Applicant attended this meeting with an official of the UWU, during which she continued to assert her right to refuse attending any meeting unless the Respondent provided her with the reasons in writing.

The Respondent terminated the Applicant's employment on 30 June 2020 for misconduct. The Applicant filed an unfair dismissal application.

Outcome

The FWC found that the Respondent had a valid reason to terminate the Applicant's employment on the basis that the Applicant refused to comply with a lawful and reasonable direction. The Commissioner stated that negating an employer the right “to discuss any issues with their staff without putting the reasons for the meeting in writing cuts across the basic premise of managerial prerogative”.

The FWC was “not comfortable” with the Applicant being required to carry the burden of her dismissal based on the poor advice from the UWU and stated that “common sense” would suggest that representative error may mitigate the Applicant's conduct which created the valid reason for dismissal. In any event, in this case, the FWC found that the dismissal of the Applicant was harsh and unreasonable, primarily due to the representative error of the UWU on which the Applicant erroneously relied, and which ultimately led to her dismissal.

No compensation was awarded according to the principle of “fair go all-round”, it not being fair for the Respondent to pay the Applicant for the representative error made by the UWU. The Applicant did not seek reinstatement.

Avoiding those procedural flaws

In the current climate employees are increasingly pursuing legal challenges to termination decisions and we are seeing both statistically and from our client's experiences, more activity in the unfair dismissal of the FWC. Recognising the difficulties that abound in ensuring all elements of a “fair dismissal” are accorded to an employee, we have developed our Partnership Package for clients to allow them sounding board advice at critical junctures of the termination process such as the meeting itself and when there are unexpected hurdles. The Partnership Package can also be used as a helpful check-in for our clients throughout the course of the employment relationship in managing the array of people management issues and is based on our desire to partner with our clients for the long term and to be proactive rather than responsive.

Please contact us if you are interested in hearing more.

Read the full decision here.

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