unfair dismissal

When dismissal goes wrong

Many businesses fall foul of Australia’s Unfair Dismissal Laws.  More small-medium enterprise businesses than larger.  It is critical for business to engage a HR expert early in the process and follow the guidance of HR to ensure this type of situation does not occur.  Some simple steps here, would have avoided this whole mess.

In a recent case, a cleaning contractor Joss Facility Management was found to have unfairly dismissed Veronica Bennett, a 56-year-old female employee.

In August 2016, Veronica commenced unpaid sick leave for an operation. During her recovery period she provided ongoing medical certificates from her treating doctor who advised she was unfit for work for various fixed periods of time.  She also held ongoing discussions with the company’s return-to-work co-ordinator.  In January 2017, she advised that she expected to clarify her potential return to work at a doctor’s appointment on February 10 2017.

Pre-empting this, on February 6, Ms Bennett received a call from the company injury manager and internal legal counsel who concluded during the conversation that Bennett could no longer perform the “inherent requirements” of her position and she was terminated over the phone!

Joss sent a letter confirming her dismissal the next day. Her doctor however, issued a certificate stating she was fit to resume work on February 14!

Commissioner Ian Cambridge said “an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag.”

He stated that Ms Bennett was dismissed because the employer decided that she was unable to undertake the inherent requirements of her position without proper medical prognosis.

“There was no medical prognosis or opinion upon which this decision of the employer could have been properly established”. “The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion.” “The procedure that the employer adopted, particularly involving the telephone discussion during which advice of the decision to dismiss was conveyed, was highly inappropriate, and did not provide a proper or realistic opportunity for the applicant to be heard or provide evidence as to her medical prognosis. Thus, the employer denied natural justice to the applicant”.
Commissioner Cambridge added that the reason for the applicant’s dismissal had no basis in fact, as was confirmed when four days after the dismissal the applicant was provided with a medical clearance to return to work.

The Commission went on to say “regrettably, the dismissal of the applicant was harsh, unjust and unreasonable. Thankfully, the applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.”

He ordered Ms Bennett’s reinstatement and payment of lost wages. She will return to work next week.

Key Learning Tips

  • Seek out HR expertise in dealing with matter of this sort. The medical /return to work process needs to be managed proactively and carefully, ensuring legalities are adhered to, that the business needs are considered within a clear, open and fair process.  These processes are not only legalistic, but require a high level of empathetic communication to achieve the right outcome for the person and the business.
  • Never, ever have such conversations over the phone. It behoves all organisations to manage these conversations face to face. Where dismissal is concerned, a live face to face is most preferable and employers should just wear this cost.  Even if you have managed the process beautifully, ending employment in such a way will always be found to be harsh.
  • Understand that laws in Australia require employers to act reasonably, fairly and justly without being harsh and unfair. We discuss these concepts in our up and coming Ebook.
  • Having an employee re-instated is bad for the employer’s reputation and that person is then also protected from any further adverse action. This tends to make the whole process exceptionally difficult to manage and managed poorly tends to have irreparable damage to culture.

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This article is intended to provide commentary and general information. It should not be relied upon as comprehensive or legal advice. Formal legal advice may be necessary in particular transactions or on matters of interest arising from this article. The HR Experts International is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.

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