Unfair Dismissal Fair Work Commission Recently

The recent case of Amanda Olesen v Needlework Tours Pty Ltd illustrates some importance considerations for employers when dismissing employees

In this case, applicant Ms Olesen expressed an intention to start own business in meeting with respondent. Ms Olesen used social media and business networking sites to promote new business.  The respondent Needlework Tours stated that they believed applicant was working for new business during work hours.

The Commission found no evidence that suggested that applicant was operating own business or not working as directed and therefore found no valid reason for termination.  In evidence the applicant contented that her employment was terminated via text message and was not notified of reason until after termination and was also not given the opportunity to respond to reason for dismissal.

The Commission considered the Small Business Fair Dismissal Code and found that the fraud allegations were without substance, It also held that a lack of HR expertise and small size of business no excuse for failure to give applicant opportunity to respond

Commissioner Ryan held

“Having taken into account each of the matters referred to in paragraphs (a) to (g) of s.387 and being satisfied that there are no other relevant matters needing to be considered under s.387(h) the Commission decides that the dismissal of Ms Olesen from her employment with the Respondent was harsh and unjust and unreasonable. It was harsh because Ms Olesen had not engaged in the alleged misconduct. It was unjust because Ms Olesen was denied procedural fairness by Mr Laughlin and was given no opportunity to defend herself. It was unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round.”

Lesson for employers

  • In matters of fraud, potential fraud a careful investigation is recommended to ensure that the misconduct occurred and that the employer is in possession of sufficient evidence to support their claims.
  • Procedural fairness and the right to respond to allegations should be considered to be ‘set in stone’
  • A professional and timely investigation by an expert can save time, money and stress
  • If in doubt call an expert – http://awpti.com.au/investigations/

Unfair Dismissal Fair Work Commission Recently

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