Unfair Dismissal - No opportunity to respond

Recently we have written an article – Termination and Making it less stressful for Everyone. We gave some tips and advice on how to handle terminations which let’s face it no one ever said that they actually like doing them. We often hear from employers “its impossible to terminate employees” which we get when you see time and time again case law (like the below) pops up in the media. This does not show the true extent of unfair dismissal claims however as many are settled at conciliation and never make it to public knowledge. 

If a termination procedure is not managed appropriately and carefully, employers can be subject to numerous post-termination claims, including unfair dismissal, adverse action, discrimination and harassment, workers’ compensation and breach of contract – among others. Even if the termination is by mutual agreement or the employee resigns, the employer should ensure they have proper termination procedures in place so as to best protect the employer’s goodwill and property. 

Below are some key areas to watch out for when you are looking to terminate an employee – you can also get some guidance from our Termination Checklist which you can find as a FREE resource HERE 

      1. Ensure that you have workplace policies and procedures in place including code of conduct, performance management, disciplinary, and termination;
      2. Ensure that the expectations are clear to all employees and where someone is not meeting those expectations have a meeting to set them out – ensure you document this process and follow up in writing with the employee the expectations, support to be provided, and timelines to improve;
      3. If the employee is not improving despite support and guidelines being clear you can start the formal process;
      4. When you invite to a meeting make it clear that it is a formal process and ensure that a support person is allowed. You would also give a reasonable time frame of notice for the meeting;
      5. In your communications make sure you include consequences of the conduct or performance is not improved – such as further disciplinary action leading up to and including termination of employment
      6. If a serious conduct issue comes to light, ensure the employee is given a reasonable opportunity to respond prior to any final decision being made;
      7. Ensure overall that the employee is generally given ‘a fair go all round’.

If you need support then you can book a discovery call in with our team by using the button below

schedule an appt - Termination - No opportunity to respond - unfair dismissal  (from 2012)

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No opportunity to respond ‚ unfair dismissal

The dismissal of an employee for poor work performance has been deemed to be unfair. The poor performance had only been one of the reasons for the dismissal ‚ the other being unacceptable behaviour towards colleagues and superiors ‚ and the employee had not been given an opportunity to respond to either of the reasons.

[Full text of this case: B v SPI PowerNet Pty Ltd [2012] FWA 5962 (25 July 2012)]

Unacceptable behaviour due to domestic stress

A procurement coordinator employed by an electricity provider was short-tempered at work and received a written warning on 25 March 2010 because of his behaviour. He was under serious stress because his former wife would not give him access to his young son (who had just started walking) and because he had been involved in a car accident and the person liable for damage to his car was refusing to pay.

In October 2010, the employee also had run-ins with some of his superiors because he thought they were breaching the company’s purchasing policy and exposed it to monetary losses. He then received a final warning in January 2011. In June 2011, he requested to work part-time until early 2012 so that he could care for his son two days a week, but the employer did not respond to his request.

The employee went on leave and returned on 12 September 2011. He was put under pressure because the employer had introduced new software and gave him only half an hour’s training on the new system. Another employee felt frustrated by the new system too, even though she had been given two hours of training.

On 7 October 2011, the employee was told there were concerns about his performance and behaviour and he was given a performance improvement plan. Over three weeks, weekly meetings were held to assess his performance against the plan. At the third meeting, on 28 October 2011, his behaviour and conduct were raised but issues relating to work performance were not. He was dismissed after the meeting, and the reason given was that his work performance had not improved sufficiently.

The employee applied to Fair Work Australia for an unfair dismissal remedy according to s394 of the Fair Work Act 2009, claiming the termination of his employment had been harsh, unjust or unreasonable. A conciliation conference on 29 December 2011 was not successful.

Evidence before Fair Work Australia

Before Fair Work Australia (Commissioner Cribb), the employer claimed a number of formal and informal conversations had been held with the employee about his conduct. He had frequently absented himself from work without permission and had raised his voice in uncontrolled and aggressive outbursts towards his colleagues and manager at work. He had not completed the majority of the tasks set for him, and the quality of his completed work had been poor.

The employee claimed his employer had set him up to fail after he returned from leave. It had changed his job, provided inadequate training in the new system, and made it difficult for him to convert to part-time in order to care for his child. He also alleged that the performance management process had been a sham ‚ a process set up in order to manage him out of his job. The performance plan had been unachievable because it had required him to complete not only his regular weekly work but also a backlog of eight months of work that had not been done while he had been on leave.

Poor work performance

During the three-week performance improvement review period, the employee had worked three days a week and had been on sick leave for two and a half days; so, instead of assessing his performance over three weeks, it had been assessed on only 6.5 days of work.

The tribunal accepted that at the final meeting on 28 October 2011 the employee had not been told where he had not met the performance plan and had not been given an opportunity to speak about the tasks he had completed. Although the behavioural concerns had not been mentioned in the dismissal letter, it was clear that they had also been part of the reason for the dismissal.

The tribunal found that the employer had not established that there had been a valid reason for the employee’s dismissal based on his work performance.

Unacceptable behaviour

The employee’s behaviour at work, with uncontrolled and aggressive outbursts, had undoubtedly been unacceptable. In his witness statement, he said that he had been diagnosed with depression and anxiety already some 21 years previously and that it had been successfully controlled then. His employer, however, had not been aware of his history of depression, but at the same time, it had not enquired either whether his inappropriate behaviour could be related to a medical condition.

The tribunal found that on the basis of his unacceptable behaviour there had been a valid reason for the employee’s dismissal.

Conclusions – compensation awarded

As the employee had not been notified of one of the two reasons for his dismissal, he had not been given the opportunity to respond to that reason. Even in relation to the work performance reason, his performance during the final week had not been discussed at the meeting on 28 October 2009, so it could be argued that he had not been given the opportunity to respond to that either. The tribunal concluded that the dismissal had been harsh, unjust, or unreasonable.

The tribunal was satisfied that reinstatement was inappropriate as a remedy. In calculating compensation, it took into account the employee’s 22 years of service and his salary at the time of the dismissal. It determined that he was entitled to $19,939.28 in compensation. Up until 3 February 2012, he had not been able to undertake alternative work, and after that, he had been able to work two days a week. Hence, a discount of 15% was deemed to be appropriate, leaving the compensation as $16,948.38. However, the figure could not be finalised until the tribunal had information of any other possible payments the employee had received since 3 February 2012.

B v SPI PowerNet Pty Ltd [2012] FWA 5962 (25 July 2012)

Source: http://www.workplaceinfo.com.au (06/09/2012)