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!

Workplace Myths: Facebook Sacking for Harassment

Fair Work Australia (our national employment disputes tribunal) recently agreed that an employee who was sacked for posting aggressive anti-work rants on Facebook should stay sacked; and his employer acted reasonably in sacking him.

Background

An employee of the Good Guys Townsville posted a status update from his home computer, outside of work hours, saying 

"[He] wonders how the f**k work can be so f**king useless and mess up my pay again. C**ts are going down tomorrow."

At work he was asked who he had been referring to. He admitted it was the store's Operations Manager.

The store owner said the employee was sacked for calling his colleague a c**t on a public page, and also because it threatened the Operations Manager.

Fair Work Australia said the employee's actions amounted to serious misconduct. The Good Guys employee handbook provides clear guidelines on the need to be courteous and police to workmates and contains detailed policies on sexual harassment and workplace bullying.

The tribunal noted that even without the handbook, "common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee."

Damien O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA5311 (11 August 2011)

Law

There are two key myths this case raises:

Myth One: Someone has to be offended for harassment or misconduct to have occurred.

The law recognises two forms of harassment:

1. Things that might be offensive to some people eg. calling them a rude nickname or touching on the arm. 

These only becomes harassment if a person has been asked not to do it, and the behaviour continues.

2. The things that are considered heinous by community standards eg. nudity, violent images, threatening a person, touching them on the bottom or genitals. 

These are automatically considered harassment and if the employer becomes aware of them, should lead to disciplinary action (since an employer has an obligation under OHS law to ensure the workplace is free of these behaviours).

Myth Two: If it didn't happen at work, it's not work related.

The law recognises that if something happened between two people, who are connected by their workplace, then the employer has some responsibility for ensuring it is clear the behaviour is unacceptable, and if necessary the perpetrator is disciplined.

*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!