Sacked by his own father without a word of warning

What happened

Anthony Pomering was the general manager of Millers Turf Farm, a small family business run through a company called Ronpom Pty Ltd. The company's sole director and shareholder was his father. The Commission found the business's operations were at least primarily the son's responsibility.

On 19 August 2016 Mr Pomering received a letter from his father, on behalf of the company, ending his employment as general manager "effective immediately". It gave three reasons: an unauthorised transfer of $5,000 from the company's bank account to his credit card account, the unauthorised removal of the company computer he used, and $990 in cash taken from a delivery vehicle without authority.

Mr Pomering's evidence was that he had not been told about, or asked about, any of the three matters before the letter arrived. He applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth).

The three allegations

Mr Pomering accepted he made the $5,000 transfer, but said he needed no permission. The credit card had been opened with his father's knowledge, on the same visit to the bank as the company's account, and was used almost exclusively for business expenses. He had made several earlier transfers to keep it under its limit without objection. Senior Deputy President Hamberger accepted that evidence, and inferred the $5,000 related to paying a supplier's invoice.

He also accepted he took the computer home without telling his father, so that a friend with IT expertise could securely delete his personal files. It went back some months later. The Commission accepted he never intended to keep it, though he "might have done better" to say what he was doing.

The cash allegation fell away before the hearing. After speaking again with the employee who had reported it, the father no longer pressed it, and the company did not rely on it as a reason.

Why: the small business code

Under s 385, a dismissal is unfair only if it was harsh, unjust or unreasonable and was not consistent with the Small Business Fair Dismissal Code. The farm argued it had followed the Code. The Code lets a small business dismiss without notice or warning where it believes on reasonable grounds that the conduct is serious enough to justify immediate dismissal.

Applying a Full Bench test, the Commission asked whether the employer held that belief and whether it was based on reasonable grounds, which includes having carried out a reasonable investigation. The father had made no attempt to contact his son in the two days between learning of the allegations and dismissing him. He conceded he may have been "remiss" in not asking for the computer back first, and said he was still investigating when he sacked him.

The Senior Deputy President found many of the steps taken after the dismissal should have been taken before it. He said it would be "a very rare case" in which an investigation was reasonable when the worker had not been asked or told about the alleged misconduct, and "This is not one of those." The dismissal was not consistent with the Code.

Harsh, unjust and unreasonable

The Commission then weighed the s 387 factors. There was no valid reason: the transfer was within Mr Pomering's ostensible authority as general manager, and treating the computer as stolen rested on "nothing more than an untested assumption". The company also conceded he was not told the reasons until the dismissal took effect.

The farm's size and lack of human resources expertise did not help it. The Commission said a lack of that expertise "cannot excuse the respondent's total lack of communication" with the son before sacking him. The dismissal was unfair.

How much was awarded

Mr Pomering did not seek his job back, and the Commission agreed reinstatement would be inappropriate: the relationship between father and son had become "poisonous". It found he would probably have stayed only about four more weeks, because he no longer wished to work in the office, which the role required.

At $2,096.15 a week, with nothing earned in those four weeks and no deduction for misconduct, the Commission ordered $8,384.60 compensation, less tax.

What this means for you

Being accused of misconduct does not, on its own, make a dismissal fair, even in a small family business. If you are dismissed over something nobody raised with you first, it is worth getting advice, because the lack of any chance to explain can count heavily in your favour.

For small employers, the lesson is to ask before acting: put the allegation to the worker and listen to the answer. Compensation is also tied to what you would really have earned, so a relationship that was already breaking down can keep the amount small. An unfair dismissal application must be lodged within 21 days of the dismissal.