Wednesday, February 29, 2012

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?

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.

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!

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