Claims of unfair dismissal arise in many different circumstances, but all are costly and inconvenient. Catch the potential trouble before it starts. Here are some recent unfair dismissal cases and the procedures that could have avoided them.

Case #1 Not Having Procedures In Place

A Sydney puppy farm’s reasons for dismissing a casual kennel hand were “capricious, fanciful, spiteful or prejudiced”, the Fair Work Commission has found.

The employee, who was also a university student, had been working at Cloud Catcher Pty Ltd for about two years without any performance issues being raised until a new manager was introduced.

However, it was only in the final 10 days leading up to his dismissal that the worker was made aware of any concerns about his performance.

Fair Work Commissioner Leigh Johns said that the company’s procedures were “non-existent” and had “gone to the dogs” and the dismissal was so unfair that “even the dogs in the street know”.

The worker, who subsequently found another job weeks later, was awarded $1,730 in compensation.

Case #2: Employee Not Following Procedures

An Airservices Australia fire-fighter employed at Melbourne Airport was dismissed for making a video of himself pretending to make music while an alarm sounded at the Fire Control Centre (FCC) where he was working.

His supervisor said that when the alarm sounded the fire-fighter “did not follow procedure in identifying and acknowledging the fire alarm fault.”

FWC Deputy President Gooley said she was satisfied that there was a valid reason to dismiss the fire-fighter.

She added that Airservices had placed significant trust in the worker and he failed to take this responsibility seriously and that was evidenced by not only his lack of judgement in making the video but also his lack of judgment in posting the video.

Case #3 Is there Enough Consideration of Alternatives To Dismissal?

The WA Industrial Relations Commission has found that a transit officer who was sacked for using capsicum spray on a 12-year-old was dismissed unfairly.

Mr Stefano Merlo was dismissed on 8 June 2016 after an internal investigation by the Public Transport Authority of Western Australia (the Authority).

The Authority found that he had used excessive force by deploying Oleoresin Capsicum Spray (OC spray) during an incident on the Eastern Concourse at the Perth Railway Station in the early hours of 7 November 2015, though Mr Merlo’s defence contended that Mr Merlo’s dismissal was harsh, oppressive and unfair.

The perpetrator in question (named only ‘A’ because of his age), was very abusive and appeared to be quite intoxicated. Mr Merlo said he assumed the abusive person was about 15 or 16 years old, given his size, apparent state and the fact he was in the station area at that time of the night (although it transpired that ‘A’ was only 12 years old).

Transit Officer Warr, who was on duty with Mr Merlo, testified that according to what she understood from her training, in cases where an individual is threatening a transit officer, the appropriate course is for the officer to disengage and where possible, walk away. This is so a safe distance can be established between the officer and the individual concerned.

She also stated that when she attended the scene and witnessed the behaviour of ‘A’ she did not personally feel threatened.

When asked about alternatives to dismissal, the General Manager of Transperth Train Operations said that he did consider the options of demotion and transfer. However, he did not consider they were appropriate, having reached the view that Mr Merlo seemed to have difficulties with compliance with procedures. WA IRC Senior Commissioner Stephen Kenner disagreed, and the bottom line was that Mr Merlo was reinstated.

There is also the question of whether Mr Merlo had been sufficiently trained in what to do in the circumstances, as his reactions were so different from those of the other officer involved.

Points to consider

Having clear, unambiguous policies in place and making them known to all staff is an important first step. These policies, on a range of relevant workplace issues (including termination of employment), should be put in writing and made available to all staff, so that they understand their contract, and have full explanations of notice clauses and termination pay.

Give your staff training on various aspects of workplace procedure, and make sure line managers and supervisors get guidance and training about what to do when things go wrong. It’s important to include training in your business planning and budgeting. You should also consider whether changes in your business may require you to offer training. As an employer, you are legally obliged to make sure you provide staff with work health and safety training so they know how to do their jobs safely. You may also need to provide industry-specific training relating to your business.

At the minimum, adopt the practice of taking down some brief notes whenever you have a private meeting with an employee. This record keeping will serve to jog your memory and may clear up any confusion in the future. And it will be vital if you have a case that comes to court.

Have further questions about unfair dismissal claims policies and procedures? Give us a call at JFMLAW on 02 9331 0266.

John Morrissey

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