MKI Legal recently acted for a client, let’s call him Mike (because we cannot reveal his real name due to confidentiality obligations). Mike worked as a supervisor for an earthworks business in Western Australia.
Mike was required to perform a job which involved conducting some drain digging. Mike was onsite with several other employees of the business. The first thing that Mike did was to determine the position of the existing pipe-work. It is normal industry practice for Mike to dig a few pot-holes to determine where the existing pipe is located. The practice involves digging several pot-holes close to the the length of the proposed ditch to be dug to determine the position of the existing pipes.
Mike followed proper procedure and directed the other employees to commence digging the ditch. Towards the end of the job, the machine struck a portion of the existing pipe. It struck the portion of the pipe because of an unforeseen bend in its position which was not able to be located during the standard pre-work check.
The pipe did not break fully. Mike called his supervisor to advise what has occurred. Moments later, Mike received a call from the owner of the business. The owner was yelling at Mike and was furious about what occurred. Mike tried to explain to the owner how the accident occurred and that proper procedure was followed. The owner was merely dismissive of the reasons Mike gave him.
Mike then assisted other employees to repair the damage to the pipe.
That afternoon, Mike went back to the workshop and was told that his employment had been terminated. Mike’s supervisor had a termination letter in hand that he gave to Mike.
Mike did not even have an opportunity to advise his employer what had occurred.
Why this is unfair dismissal
Mike had worked the minimum period and met the other criteria required to lodge an unfair dismissal claim. If Mike had not met this minimum criteria, then he would not have a right to file an unfair dismissal complaint and would have little recourse to what occurred.
However, as mentioned, Mike does have the right to lodge a claim and these are the reasons why the termination was unfair and, in our view, breaches the unfair dismissal provisions of the Fair Work Act 2009:
- Mike was not given an opportunity to provide his reasons before the employer made a definitive decision to terminate his employment. If there is ever an allegation of wrongdoing, the employee must be given an opportunity to respond, and must be given a chance to put forward their version of what occurred. The employer should avoid jumping to conclusions without having undertaken a thorough investigation.
- The second reason why this termination was unfair was that Mike didn’t do anything wrong. Mike followed all the safety procedures and did everything he was required to do in that situation. The pipe had an unforeseen bend in it, which would not have been able to be picked-up by most employees in Mike’s position. Sometimes accidents happen and that is the nature of business. The pipe was rectified in any event and the employer did not suffer any financial loss.
In this situation, the employer was overcome with anger and obviously made a decision in the heat of the moment without obtaining proper legal advice and without thinking before acting. The business should have obtained advice from an unfair dismissal lawyer before terminating the employee.
Mike is entitled to compensation as a result of the unfair dismissal.
If you have any questions, please contact one of our unfair dismissal lawyers for a no obligation discussion about your matter.