How NOT To Dismiss Employees

In Veronica Bennett v Colin Joss & Co Pty Ltd, an employer’s manner of handling the dismissal of an employee was highlighted by the Fair Work Commission, warning against dismissing employees with the same indifference one would a “dirty rag”.

Veronica Bennett had, for over half a decade, worked as a permanent part-time cleaner for Colin Joss, a cleaning and maintenance business that handled various contracts for cleaning services for the New South Wales government.

In 2014, Ms Bennett had undergone surgery on her right ankle, requiring her to be on unpaid medical leave for two and a half months. Two years later, similar yet more complicated surgery was conducted on her left ankle, and she had to be out for longer periods of time in order to properly recover. In each instance, Ms Bennett had provided her employer with proper medical certificates.

As a result, the employer’s return to work coordinator communicated with Ms Bennett, inquiring as to the circumstances of her recovery and the possibility of her returning to work, and providing her with documentation regarding the job responsibilities to be reviewed and completed by her treating physician. Ms Bennett met with her doctor and had the documents filled, with her physician indicating that she would be unfit for work for an additional month. In another communication via telephone, the return to work coordinator asked Ms Bennett as to whether she was cleared to resume her duties soon. Ms Bennett responded that she had an appointment with her physician on 10 February, and would know then as to the state of her fitness.

Four days prior to the appointment with her doctor, Ms Bennett received a phone call from the employer’s Injury Department Manager and Internal Legal Counsel, again inquiring as to her recovery and probability of resuming work, and during the same call, informing her that since she is unable to return to her duties, her employment had been terminated. Written notice of termination was sent the day after the phone call. Two days later, at the scheduled medical appointment, Ms Bennett’s physician cleared her and declared her fit to return to work.

The Fair Work Commission examined the circumstances surrounding the dismissal as it would relate to Sections 385 and 387 of the Fair Work Act.

Lack of Valid Reason To Dismiss, Irregularities in Notification of Dismissal

The Commission noted that there was a complete and total lack of a valid reason for the dismissal, since it was evident that the decision was made during the last phone call, after Ms Bennett indicated that she would know more about her condition only after meeting her physician at the scheduled appointment four days after the phone conversation. It also stated that the employer’s decision was based on speculation, without any medical evidence to support a conclusion that the employee could not perform the duties of the job. As Commissioner Cambridge stated, “the capricious falsity of the employer’s decision was blatantly exposed by the medical clearance to return to work four days after the dismissal”. This dismissal was described as “extraordinarily hasty and plainly erroneous decision”, and the reason for the dismissal as “erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion”.

The Commission also stressed that informing the employee of her dismissal via telephone was a “denial of natural justice”, since this procedure failed to provide Ms Bennett with an opportunity to be heard or to refute the basis of the decision itself having lacked medical evidence to support it.

Needless to say, Ms Bennett was successful in her claim and was granted reinstated of her employment.

Lessons for the Case

The key takeaways from this case are based on two crucial key points: First, always have proper basis for dismissing an employee, backed by sufficient evidence. Secondly, when actually informing of the dismissal, have the basic decency to do so properly.

The first key point was perhaps where the Commission took extra steps to be clear in analyzing and explaining the decision. The evidence showed that the final telephone conversation began with asking how Ms Bennett was recovering and whether she knew when she could return to work. She answered that there was an appointment scheduled with her physician in four days, and that would be when she could know for certain. Yet, the same telephone conversation was where it was decided that her employment was terminated, clearly based on a total lack of proper evidence to support the conclusion that Ms Bennett was in no medical position to perform the job description. As Commissioner Cambridge stated, there appeared no reason to simply wait four days, allow the doctor to examine Ms Bennett, and then decide based on actual medical evidence.

Regarding the second point, it is perhaps best said through Commissioner Cambridge’s words “employees are human beings and not human resources”, where he explains that office machinery may be disposed of easily once malfunctioning, and lambasts the manner of informing an employee of dismissal via telephone or electronic means, as these are far beneath the treatment people should receive.

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