Defending Unfair dismissal applications – If you terminate a employee there is always the possibility that the employee might submit an application to the FWC for unfair dismissal.
If an application is made an employer must respond to the application otherwise the FWC may regard the matter as being uncontested as it did in the matter of Antonarakis v Logan City Electrical Service Division P/L.
In this matter the applicant was dismissed after allegations that he was seen working for himself for cash while employed by respondent, the applicant argued he was helping friend repair pool fence at relevant time
Following the applicant making an application to the FWC in regard to unfair dismissal multiple attempts were made by Commission to notify respondent of proceedings by way of emails, letters and telephone calls.
Commission Simpson was satisfied respondent was aware of application and had ample opportunity to respond, however had chosen not to do so, on that basis Commission treated application as uncontested. The respondent was found not to have complied with Small Business Fair Dismissal Code.
The Commissioner could not be satisfied that the respondent believed on reasonable grounds that applicant’s conduct was ‘sufficiently serious to justify immediate dismissal’. If the dismissal could have been regarded as with notice, applicant had not been warned, given an opportunity to respond, nor given a valid reason as to why his employment was at risk.
The Commission accepted that applicant had not done a cash job and found no valid reason for termination as the Service Manager and Managing Director had notified applicant of reason for termination, but each accused the other of witnessing alleged conduct and being decision maker. It was found that the applicant was denied procedural fairness and as a result the dismissal was harsh, unjust and unreasonable.
It was considered that reinstatement was inappropriate, compensation of $19,640 gross taxed, plus 9.5% superannuation was ordered.
Also remember timely and professional workplace investigations into misconduct may strengthen your case.
Defending Unfair dismissal applications
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