Sacked for a good reason, but employee still wins dismissal

Did you know that an employer who has a valid reason for terminating an employee can still fail in an unfair dismissal case?

Background

A Financial Planner had been performance managed over two years. He had not improved. During this process he was given two written warnings. On his final warning it was made clear to him that he needed to achieve some basic targets to remain employed. He failed to achieve the targets.

He was called to a meeting to discuss his employment. He requested that the meeting be rescheduled so that he could have a support person attend with him. The employer refused and proceeded to sacked him.

The Financial Planner lodged an unfair dismissal claim with Fair Work Australia. In considering a claim the tribunal must consider whether the termination was harsh, unjust or unreasonable. The tribunal found that the Financial Planner’s poor performance was a valid reason for the sacking, but that he had been unfairly dismissed because the manner in which he was sacked was unreasonable . The company was ordered to pay him compensation.

Law
There are a couple of key lessons/ principles from this which are important to note:
1. The power difference

One of the key differences between employment law and most other law is that employment law recognises there is a power imbalance between employer (powerful, lots of resources) and employee. It deliberately sets out to level the playing field.

2. The process of sacking a person is as important as the reason for sacking them

The Fair Work Act 2009 advises that a person is unfairly dismissed if it is “harsh, unjust or unreasonable”. Criteria for determining these are contained in the Act. Cases also provide clarification.

In this case, the tribunal said it was unreasonable for the employer to refuse to postpone the meeting so that he could have a support person present.

3. A support person can be requested for any disciplinary meeting, not just the final meeting

This is also provided by the Act. Other cases tell us that refusing a support person in the early stages has the same effect.

Laker v Bendigo and Adelaide Bank Ltd [2010] FWA 5713

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!

Would you rather be liked or respected?

The most obvious answer to this question is both. However, managers tend to prioritise one over the other just to get the job done - which one do you lean toward?

If you choose respect:

Then you believe that it is more important to demonstrate competence, standards and an ability to make tough decisions, even if it makes you unpopular. You believe that a more formal ‘arms length’ approach allows you to treat everyone equally and fairly. You are consistent in your approach, which is good for employees because it means they can predict your response, and this gives them a sense that they are on solid ground with you.

The down side to this style is that sometimes going for respect comes at a cost. If you are blunt and steamroll others into doing what you want, through sheer force, it makes your job a lot harder. As a manager, it is your job to get people to work with you. Steamrolling them does not achieve this, because it leaves them angry and deflated. They will recognise that you don’t value their opinion, and because they don’t have any real input, any success the team has will just irritate them more. From their perspective, you are profiting at their expense.

If you choose to be liked:

Then you believe it is important that the individual is valued and looked after. You are more likely to make decisions based on what is right for each person. You believe everyone should have a pleasant experience at work, and this is helped by breaking down barriers and setting up an informal environment. Employees will benefit from this because they will want to work with you and do their best.

The down side to this style is that positive feelings come and go. If you are constantly having to work for the ‘feel good factor’, if puts you in a low power position where you are pandering to them. Those who focus on being liked can have difficulty if there is ‘bad blood’ between them and others. Their decision making is often based on avoiding this, which can make others view them as spineless or incompetent. Decisions by this manager are often in favour of the person at the centre of the issue. However, their decisions have a ripple effect on many others. Because they make decisions based on what is right at the time and for the individual, others will feel that they ‘play favourites’ and will never be really sure what makes you favour others over them.

So which style is better? As with many things in life, this is a sliding scale with ‘respect’ at one end and ‘being liked’ at the other. Being at one end or the other will make your job harder, either because people don’t want to work with you, or because they don’t believe you have the guts to do the job. A balance of both is the key!