Unfair Dismissal Claims – The Risks When Terminating an Employee

By 28 October 2019Workplace

A recent decision of the Fair Work Commission has highlighted the risks employers face when dismissing an employee. In Peach v Hage Retail Group [2019] FWC 6487, the Commission found that Peach had been unfairly dismissed from his employment based on alleged conduct.

Peach was employed by Hage Retail as baker. After a period of absence following a workplace injury, Peach had returned to employment with Hage Retail with flexibility to vary his start and finish times. Peach would note any amendments on the roster sheet and initial to indicate the hours he had worked.

In early 2017 the employer took issue with the accuracy of a timesheet entry and issued Peach with a ‘written final warning’. Subsequently, in April 2019, the employer took further issue with timesheet entries and dismissed Peach without notice.

There was a dispute over the conduct which had led to the written warning being issued in 2017 and the subsequent conduct in April 2019 which led to his dismissal.

In May 2019, the employer had contacted Peach with respect to the alleged conduct which led to his dismissal wanting to arrange a meeting to discuss the matter. However, Peach indicated he would not be available for two days but could meet the next day as he was looking after his sick children. A representative of the employer telephoned Peach before the meeting and advised him he had been dismissed.

The Commission found that Peach was afforded the ability to vary his shift times provided the work was done. There was no suggestion that the requisite work had not been completed. Whilst it was determined that Peach had not correctly stated the hours he worked one day in February 2017 the Commission accepted that he left early due to concerns about working alone.

The Commission accepted the timesheet records in April 2019 were incorrect but the overall total hours matched those claimed as Peach had not taken the full lunch break.

The Commission found that a managers view that Peach’s workers compensation claim had been fraudulent was a factor in deciding to dismiss him but this was never put to Peach and Peach was not given the opportunity to respond to concerns about the timesheet entries in April 2019.

It was noted that where a dismissal related to an employee’s conduct the Commission must be satisfied the conduct occurred and that it justified dismissal. Whilst it was accepted there were inaccuracies in the subject timesheets, the Commission was satisfied that hours claimed had been worked and that Peach had not sought to defraud his employer.

The Commission stated that whilst Peach should have paid more attention to the accuracy of his timesheets there was a level of flexibility in his start and finish times and the taking of breaks. Accordingly, it was found there was not a valid reason for the dismissal.

It was determined that Peach had not been made aware of the employers concern about his conduct and was not given an opportunity to respond. Nor had he been given the opportunity to respond before the decision was made to terminate his employment.

Whilst the employer was entitled to sanction Peach for the timesheet inaccuracies it was determined his conduct did not support a decision to dismiss.

What you need to know about unfair dismissal claims:

  • Employees have 21 days after the dismissal takes effect to apply to the Fair Work Commission
  • Employees must have been employed for at least 6 months before they can bring a claim (12 months for small business)
  • A small business (with fewer than 15 employees) is protected from unfair dismissal claims if they follow the Small Business Fair Dismissal Code
  • To be unfair a dismissal must be harsh, unjust or unreasonable
  • In considering whether a dismissal was harsh unjust or unreasonable the Commission must consider:
    • whether there was a valid reason for the dismissal;
    • whether the person was notified of that reason;
    • whether the employee was given an opportunity to respond to any reason regarding their capacity or conduct;
    • any unreasonable refusal by the employer to allow the person to have a support person present at discussions regarding the reasons for the dismissal;
    • if the dismissal relates to unsatisfactory performance, whether the employee had been warned before the dismissal;
    • the degree to which the size of the employer would be likely to impact on procedures followed in effecting the dismissal;
    • the degree to which the absence of any dedicated HR management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal;
    • any other matters the Commission considers relevant.

If you are considering terminating an employee we recommend you obtain advice before making the decision. The risks are high and some expert assistance can avoid the pitfalls of an unfair dismissal claim.

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