In a recent Fair Work Commission decision of Abdul Soomro v Murray’s Australia Pty Ltd T/A Murray’s Australia [2016] FWC 8211 the applicant, Mr Soomro made an unfair dismissal case to the Fair Work Commission. Mr Soomro stated that his termination of employment was harsh, unjust and unreasonable (s 387, Fair Work Act). Murray’s Australia.
In order to follow procedural fairness in terminating Mr Soomro’s employment, the following would need to have occurred:
1.Provided the employee with a valid reason for the possibility of terminating the employee’s employment.
2.Gave the employee reasonable notice of the reason and allow the employee an opportunity to respond.
3.If the employee chose to respond, the employer assessed the response and subsequently made a considered decision to dismiss the employee.
4.Allowed the employee to have a support person present at any discussions regarding a possible termination of employment.
5.The employee was given a previous warning about unsatisfactory conduct or performance at the workplace, and the employer gave the employee a reasonable chance to remedy the problem.
Background
In late 2015 while working for Murray’s Australia, Mr Soomro sent inappropriate text messages to a female co-worker, Ms Tsakos. The text messages Mr Soomro sent to Ms Tsakos were constant, unwelcome and inappropriate in nature. Ms Tsakos on many occasions asked Mr Soomro to stop sending the text messages to her, but he would not stop. Ms Tsakos made a complaint to her employer and an investigation of the allegations took place by Murray’s Australia.
The employer found that Mr Soomro’s behaviour toward Ms Tsakos a breach of Murray’s Australia workplace policy and Mr Soomro received a warning by his employer to cease the inappropriate behaviour immediately. Mr Soomro was given an opportunity to respond and was provided with a reasonable amount of time to improve and to change his ways. However, in April 2016 Mr Soomro repeated his behaviour and again started harassing Ms Tsakos by sending her text messages, during and outside of business hours, from a landline telephone number. Ms Tsakos brought this to the attention of Murray’s Australia, and the investigation team confirmed that Mr Soomro was the one who sent the second bundle of inappropriate text messages to Ms Tsakos.
The employer had a meeting with Mr Soomro to address the findings of the investigation. Mr Soomro was not denied a support person and had an opportunity to respond on what was discovered during the investigation. Murray’s Australia later made a decision to terminate Mr Soomro by letter for misconduct.
Finding
The Fair Work Commission in this case had to make a finding of whether the dismissal of Mr Soomro was proportionate to his behaviour. The Commission found that Mr Soomro’s behaviour was serious,and that his conduct jeopardised the safety and wellbeing of his co-worker. The Commission found that Murray’s Australia was justified in terminating Mr Soomro’s employment because his dismissal was proportionate to his transgression, and his dismissal was not unreasonable, harsh and unjust, and Murray’s Australia followed the correct procedure to terminate Mr Soomro’s employment, which was consistent with the law on unfair dismissal. As a result of the Commission’s decision, Mr Soomro’s application for unfair dismissal was rejected.
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