Gun mistake not grounds for summary dismissal

An Australian champion clay shooter, who had Senator David Leyonhjelm as his support person at the meeting to discuss his future employment was found to have been fairly dismissed but entitled to notice: Waters v Goodyear Australia Pty Limited [2016] FWC 1991.

Mr Waters breached a number of his employers’ policies when he acquiesced in a person whom he was mentoring in clay shooting bringing a gun into the vicinity of his workplace.

After a comprehensive investigation, the employer found that Mr Waters’ actions constituted serious misconduct.

Whilst Commissioner Cambridge agreed that Mr Waters had breached the trust and confidence inherent in the employment relationship to a degree to warrant dismissal he was not satisfied that Mr Waters had set out deliberately to do so in the incident giving rise to his dismissal.

As his employment contract provided for four weeks notice, Mr Waters was awarded compensation for that period.

The case also suggests that the way in which a support person acts at a meeting can affect a finding on the degree to which the employment relationship has broken down and cannot be retrieved.

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Don't wait until it's too late!

If you have been dismissed from your employment, you only have 21 days from the day your dismissal takes effect to file an unfair dismissal or general protections application with the Fair Work Commission.

 

The Commission will accept out-of-time applications only in exceptional circumstances and these can be difficult to prove. In the recent case of Martin v LJ Hooker Colleroy, the Applicant filed his application nine days past the lodgement date. He provided several different reasons all contributing to his late filing time, including:

 

• The pressure he suffered at work while employed;
• The time consumed searching for alternate employment;
• Needing to care for his ill father;
• Spending time with his wife and children;
• The difficulty of meeting with and engaging a lawyer;
• The time taken calculating his claim and back pay entitlements; and
• The interruption of the Easter holidays.

None of these reasons were accepted, even collectively, as falling within the definition of 'exceptional circumstances' as required under the Fair Work Act 2009 (Cth).

 

As a result, the application was rejected by the Fair Work Commission and the applicant was denied the opportunity to have his matter heard and dealt with on its merits.

 

Don't make the same mistake - make sure you file your application within 21 days of your dismissal taking effect! Contact the Workplace Relations team at Nevett Ford on 9614 7111 to ensure your application is drafted and filed quickly, efficiently and always before the due date!

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