Unfair dismissal workplace investigations

A recent  decision at the Fair Work Commission has reminded employers of the need to ensure they have fully investigated all of the relevant facts and treated employees with compassion and fairness before terminating the employment on the grounds of failure to meet the inherent requirements of their role.

A 56-year-old female employee who was dismissed by cleaning contractor Joss Facility Management has been found to have been unfairly dismissed by the Fair Work Commission – Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3669.htm

Veronica Bennett worked as a cleaner at three sites in the regional NSW town of Blayney. The company is a large enterprise with approximately 800 full-time employees, including dedicated HR staff.

In August 2016, Ms Bennett commenced unpaid sick leave following a medical procedure to remove spurs from her left foot and ankle. During the period of recovery, she provided ongoing medical certificates from her treating doctor who advised she was unfit for work for various fixed periods of time.

Ms Bennett provided evidence that she had ongoing discussions with the company’s ¬return-to-work co-ordinator and in January said she expected to clarify her potential return to work at a doctor’s appointment on February 10. On February 6,  Ms Bennett received a call from the company injury manager and internal legal counsel who concluded during the conversation that Ms Bennett could no longer perform the “inherent requirements” of her position and she as terminated.

Joss Facility Management sent Ms Bennett a letter the next day confirming her dismissal. However, three days later, her doctor issued a certificate stating she was fit to resume work on February 14.

In his judgement, Commissioner Ian Cambridge said “employees are human beings and not human resources”.

“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,” Commissioner Cambridge said

He concluded by saying the applicant was dismissed because the employer decided that she was unable to undertake the inherent requirements of her position. “There was no medical prognosis or opinion upon which this decision of the employer could have been properly established,” he said.

“The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion.”

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 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.

In summary, this case has involved a very regrettable absence of valid reason for the applicant’s dismissal. Further, it has been highly lamentable to observe the seriously flawed manner in which the employer first determined, and then conveyed the decision to dismiss the applicant.

The circumstances of this case provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality.

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.”

In regard to the remedy, the commissioner stated,

“In the particular circumstances of this case, I have formed the view that an injustice of the highest order would stand if the applicant was not provided with the remedy that she has earnestly sought. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.

Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant.

Orders providing for the reinstatement of the applicant will be issued separately. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.”

Lessons for employers – Unfair dismissal workplace investigations

* Employers should careful investigative all the circumstances before proceeding to termination.
* Consideration must be given to the the employees circumstance

Unfair dismissal workplace investigations
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