A small business’s size and lack of industrial relations expertise was no excuse for the absence of any fair procedure, during a recent unfair dismissal case. Fair Work Commission order the company to pay $26,000.
During a heated altercation, the company’s director sent the yard hand home when he called her a “back-stabbing (expletive)”.
She accepted an apology from him the following day and he returned to work the day after that.
However, the next day the director, visibly upset, approached the worker again and told him she had been instructed by her uncle - the company’s only customer - to dismiss him. When he asked why, she said because: “you do not listen”.
At the rehearing, the director submitted that the worker was dismissed for his “language, intimidation, bullying and serious safety breaches” but was allowed to return to work on a trial basis as she “felt sorry for him”.
However, she claimed that his behaviour, bad attitude and safety breaches continued… “which put all persons on site at serious risk of injury”.
She claimed: “I am the victim in this situation, I was treated badly and inappropriately in my working environment. I stood up for myself and now I’m on trial and am expected to pay and reward bad behaviour.” She added that the worker had been dismissed fairly - he had received numerous verbal warnings.
But the employer was unable to provide any evidence or details of the claims and the FWC’s Deputy President Sams concluded that: “these issues were ‘cobbled together’ after the event”.
He added: “Putting aside that the language was so grossly vulgar to have been inappropriate in any circumstances, the fact it was directed to a woman - and the applicant’s manager no less - is utterly inexplicable and unacceptable. In other circumstances, it would be sufficient grounds for summary dismissal. But that was not to be and the applicant’s employment continued for a further three days, until he was dismissed for an entirely different and invalid reason”.
The dismissed worker’s payout was reduced to $10,700 for three months’ pay less 15% for his “appalling language”.
The lesson here was that the employer ought to have dismissed the employee immediately rather than allow them to continue working for 3 days.
Dismissing an employee without an adequate understanding of the law is risky (and potentially costly) for any business.
Don’t leave yourself exposed to hefty legal and financial penalties. If in doubt please call our office to discuss the matter first.