WHAT IS AN UNFAIR DISMISSAL?
Under s385 of the Fair Work Act, a dismissal is unfair if it was harsh, unjust or unreasonable. Under s.387, a dismissal is harsh, unjust or unreasonable if:
- There was no valid reason for the dismissal that relates to the employee’s capacity or conduct;
- The dismissed employee was not notified of the reason for their dismissal;
- The dismissed employee was not given an opportunity to respond to the reason for their dismissal;
- The employer unreasonably refused to allow the dismissed employee to have a support person to assist during the discussion relating to the dismissal;
- The employee was dismissed for unsatisfactory performance but they had not been warned about the unsatisfactory performance prior to their dismissal;
WHAT’S THE DIFFERENCE BETWEEN A HARSH, UNREASONABLE AND AN UNJUST DISMISSAL?
These concepts of harsh, unreasonable and unjust dismissals overlap. But it is generally agreed that when the employee was dismissed for misconduct but that the employee did not commit the misconduct at all, the dismissal is unjust.
A dismissal is unreasonable when the employer decided to dismiss an employee after it made an inference based on some facts, but the inference that the employer made was not a reasonable inference that could be made on the facts. Lastly, a dismissal is harsh if difficult personal and economic consequences will befall the employee or when the penalty of dismissal is disproportionate to the gravity of the misconduct committed.
WHAT CAN AN EMPLOYEE DO WHEN THEY FEEL THEY HAVE BEEN UNFAIRLY DISMISSED?
An employee can file an application with the Fair Work Commission for unfair dismissal, alleging the facts that show why or how the dismissal was harsh, unreasonable or unjust.
WHAT REMEDIES CAN AN EMPLOYEE SEEK FOR THE UNFAIR DISMISSAL?
If the employee is found to have been unfairly dismissed from employment, the FWC may order the reinstatement of the employee or order the payment of damages for lost income or both.
WHEN WILL THE FWC ORDER THE REINSTATEMENT OF THE DISMISSED EMPLOYEE?
Reinstatement is the primary remedy for an unfair dismissal. Under s.390 of the Fair Work Act, the FWC may order a dismissed employee’s reinstatement if the FWC is satisfied that the employee was protected from unfair dismissal at the time they were dismissed and that the employee was found to have been unfairly dismissed.
The FWC may order reinstatement if the dismissed employee made an application and the reinstatement is not inappropriate. When the employer expresses having lost trust and confidence in the dismissed employee, this is a factor that impacts on the propriety of ordering reinstatement.
WHAT IS ONE EFFECT OF REINSTATEMENT THAT SHOULD BENEFIT AN UNFAIRLY DISMISSED EMPLOYEE?
Under s.391(2)(a), the FWC is tasked to determine if in ordering the reinstatement of the unfairly dismissed employee, the FWC ought also to determine continuity of employment and continuous service. This is a distinct determination from reinstatement, as an unfairly dismissed employee may be ordered reinstated without an order for continuity of employment.
An order of continuity of employment ensures that if there were service-related benefits during the period in which the unfairly dismissed employee was dismissed until the time that the employee was reinstated, the employee would benefit from that.
The FWC may also order a restoration of pay. That is, the FWC may penalise the employer’s unfair dismissal by ordering them to pay the salaries that the reinstated employee would have earned had he not been dismissed. This amount may be reduced to account for the amount paid by the employer in lieu of notice and any income the reinstated employee earned between the time they were dismissed and the date of the reinstatement order.
CASE STUDY – SUNRAYSIA INSTITUTE OF TAFE CASE
These principles are illustrated in the case of Russel Wakefield v Sunraysia Institute of TAFE [2019] FWC 4979 (18 July 2019).
A teacher had been employed for 15 months to conduct training. There were a few instances when the teacher was late for his training lectures because at one time, he had to stop and procure a tool he needed for teaching the class, at another, the students were late and so he had to wait for the students to arrive.
About three months after being employed as a teacher, he received an email from his previous employer on his work email. His previous employer enquired when the teacher could finish and send certain deliverables. The teacher replied to his previous employer by stating that they would deliver what the previous employer required after they paid the teacher the amounts owing to him.
The teacher was given a warning letter by his employer that his email to his previous employer using his work email account and not his personal email account was a breach of the company’s email policy. The teacher re-trained in the company’s email policy and had not repeated the same act again.
During one of his training lectures, the teacher wanted to emphasise the fact that herbicides affect living creatures including people differently and he told the story of an event involving a local and prominent farmer whom he also mentioned by name. The teacher told how 20 years before, the farmer sprayed herbicide in a paddock next to which the teacher and some of his co-workers were working. One of his co-workers experienced nausea while another experienced nosebleed. The teacher mentioned that he had then spoken to the local farmer and informed him of the effects of the herbicide on his co-workers. The local farmer said that he was going to spray in another paddock. The teacher mentioned the local farmer by name to show the students that even an experienced and prominent farmer can make mistakes like that and so the students must pay heed.
The teacher did not know that a relative of the local farmer was one of his students. The student told the local farmer and the local farmer made an angry phone call to the teacher complaining. The teacher apologised for naming the local farmer and promised to apologise to the class the next day. He apologised the next day and he thought that was the end of that as the local farmer did not escalate his complain with the teacher’s supervisor.
The teacher was terminated for misconduct, particularly, that the employer had lost trust and confidence regarding the incident with the local farmer, regarding concerns about the teacher’s tardiness and regarding an email sent by the teacher using their work email, to their previous employer which was a breach of the respondent’s email policy. The teacher was given 4 weeks’ pay in lieu of notice and was dismissed.
THE FINDING OF THE FAIR WORK COMMISSION
The Fair Work Commission found that there was no valid reason for dismissal. The mentioning of the local farmer was not done in any derogatory or insulting manner but was done matter-of-factly. The teacher apologised to the farmer and to the class for having mentioned the farmer by name. It was also clear that the teacher was confused as to whether there was any policy regarding giving the name of a local farmer in any of the lectures the teacher was supposed to give.
As for being late three times, the teacher provided good justification for the tardiness. And as for the personal email being sent through the work email, the teacher had already apologised for the behaviour and has not committed any similar behaviour.
The FWC found that there was misconduct on the part of the teacher which why his lost income was not restored 100%, but all the circumstances, when weighed together, does not amount to any misconduct serious enough to warrant a dismissal. Also, in the remote farming community, there were not as many employment opportunities for the teacher. He had found casual employment as a truck driver and farm manager after he was terminated from his employment but the salary he earned was significantly less than what he would have earned while employed as a teacher.
The FWC found the teacher to have been unfairly dismissed and ordered reinstatement with continuity of service and partial restoration of pay. The restoration was of 24 weeks’ or ordinary rate of pay less any income earned.
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