A small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation, despite the Fair Work Commission (FWC) finding the dismissed employee had used language “so grossly vulgar” that it would have been sufficient grounds for his summary dismissal.
In Trialonas v Steric Solutions Pty Ltd [2018] FWC 3996, the FWC was required to consider the summary dismissal of a yard hand who had been employed with Steric Solutions Pty Ltd for over ten years.
The dismissal followed an incident on 6 December 2016 during which the employee called his manager (and the director of the business) a “back-stabbing c*nt” in response to her retort that he should “pull his head out of his f*cking arse”. Whilst the employee claimed this was ordinary language in that workplace, he apologised to his manager the next day.
The employee was not, however, dismissed for this language – his manager summarily dismissed him three days later, at the request of the business owner, allegedly because “you do not listen”. The employee was not given notice of termination or any statement setting out the reasons for his dismissal.
When the employee commenced unfair dismissal proceedings, his manager claimed the dismissal was for the following reasons:
The FWC rejected these as valid reasons for the employee’s dismissal noting that:
In those circumstances, the FWC found the reasons for the dismissal were capricious, fanciful and even contradictory. Further, the FWC considered that, even taking into account the employer’s size and lack of industrial relations expertise, the employer could not be excused from the lack of procedural fairness it had afforded to the employee. This was made even more concerning considering the employee’s length of service.
The dismissal was therefore found to be unfair.
However, in assessing the amount of compensation to be awarded, the FWC said it would be “unrealistic” to ignore the incident on 6 December 2016 even if it was not the reason for the dismissal. Specifically, the FWC stated:
“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.”
The FWC accordingly reduced the amount of compensation by 15% - to $10,695.20.
Lessons for employers
This case is a lesson on the importance of procedural fairness. It is one of the fundamental principles of the unfair dismissal jurisdiction and can be costly to employers who fail to heed the procedural fairness requirements – regardless of the seriousness of the employee’s misconduct or size of the business.
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