Earlier this year, two cases heard in the
Fair Work Commission demonstrated what can occur when proper process is not
followed relating to termination of employment
In Lyberopoulos v Reidwell Investments BT
Pty Ltd T/A Coco Cubano Blacktown [2015]
FWC 4256, the employee was employed for less than seven months before
she was summarily dismissed.
The employer claimed she failed to comply
with their procedures and did not follow directions. The parties contested the
facts of the case and Senior Deputy President Drake had to determine whom to
believe. She accepted the employee’s evidence over the employer’s because the employer
did not seem to be a credible or reliable witness.
The Commission found that the employee was
not appropriately warned that her actions may lead to the termination of her
employment and the reasons for her dismissal were therefore harsh, unjust and
unreasonable.
As the employee was unable to obtain
alternative employment until 24 weeks and three days following the termination
of her employment, Deputy Senior President Drake ordered that the employer pay
compensation to the value of 24 weeks and three days’ worth of the employee’s
salary, being $36,267.
In Balatti v Aussie Supplements Pty Ltd [2015] FWC
4674 the employee had been working as a sales manager for three years when he
received a telephone call from his employer alleging he was being investigated
for the sale of illegal drugs whilst at work. The employee was advised he would
be dismissed from his employment and, several days later, received a letter
confirming his immediate dismissal. The employer then failed to pay the employee’s
accrued statutory entitlements upon termination, such as annual leave, and
failed to participate in a conciliation conference and hearing before the Fair
Work Commission. Commissioner Cambridge found the dismissal harsh, unjust and
unreasonable because the employer advised the employee of his termination by
telephone and the letter of dismissal did not provide any reasons for the
dismissal. As a consequence, the employer was ordered to pay $17,880.
Under section 117 of the Fair Work Act 2009 an
employer is obliged to provide notice of termination in writing. But as the decision in Clark v Framlingham Aboriginal Trust [2012] FWA 7103 shows, the
failure to provide written notice does not make a termination ineffective if
the employee has been notified (by whatever means) that his employment has been
terminated.
Melita Demirova
