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An “incompetent” HR manager’s bungled sacking of a retail worker has contributed to a Fair Work Commission finding that it was unfair, despite the employee’s secret recordings of disciplinary meetings providing a valid reason.

Commissioner Tim Lee however refused to order Bed Bath N’ Table to reinstate the casual sales assistant, in part because it lost trust in her as a result of the recordings.
The commissioner concluded that in the event of reinstatement the employer was likely to discipline her over them and dismiss her for a second time.
The sales assistant was dismissed for misconduct in March last year after she texted her store manager to say she was unavailable for a shift, instead of complying with a policy requiring her to call the regional manager.

Other reasons included alleged misconduct in a meeting about her failure to comply with the policy, Bed Bath N’ Table claiming she refused to accept the regional manager’s viewpoint and kept making complaints without substance.

Alleging she “created a threat to the health and safety” of the regional manager, it said a follow-up email was “appalling” in its lack of respect towards the manager and continued her “disrespectful, insubordinate and intimidating conduct”.

However, after reviewing secret recordings the assistant made of the meeting and of phone calls with the regional manager and a former HR manager, along with their email exchanges, Commissioner Lee found her behaviour did not justify dismissal.

Commissioner Lee agreed one email to the regional manager was “rather sarcastic and to that extent disrespectful”, when the sales assistant said she “would like to thank you once again for bringing to my attention the error of my ways with regards to a procedure . . . a majority of employees in store has failed to meet”.

But he disagreed that it otherwise had an “appalling” tone or that her messages were intimidating or disrespectful.

Rather he said they were a “forthright expression” of her concerns after the company decided to reduce her hours to one shift a week.

The recording of a meeting with the regional manager also demonstrated that while the conversation was “robust”, it was not consistent with claims she was aggressive and or that the manager felt intimidated and uncomfortable.

The recording of Bed Bath N’ Table then HR manager meanwhile revealed she made “incorrect claims to the sales assistant as to her rights under the Act”.
While finding the covert nature of her recordings provided a valid reason for dismissal after the fact, Commissioner Lee said “given the numerous flaws in the process of effecting the dismissal presided over by the HR manager, there may have been some justification in the sales assistant recording the conversation”.

Finding the dismissal process “riddled with flaws”, Commissioner Lee said Bed Bath N’ Table was within its rights to reject the sales assistant’s preferred support person as she also worked for Bed Bath N’ Table.

But he said its decision to press ahead with a disciplinary meeting the next day despite her request for more time was unreasonable.

The HR manager also “misled” the sales assistant by claiming only 24 hours’ notice of the meeting was required under the Fair Work Act, Commissioner Lee said.

When asked to provide the specific legislation relating to notice timeframes, he said the HR manager “doubled down and made the ridiculous claim that the Fair Work Act does not require her to give that information”.

He said the HR manager contemplated rescheduling the meeting in a phone call, before demanding in an email that the meeting take place.

The HR manager also sent the sales assistant an email warning that if she did not come to the scheduled meeting Bed Bath N’ Table would suspend her without pay, but then dismissed her immediately when she failed to attend.

The HR manager further claimed in the dismissal letter that she took into account “your appointment as a casual sales assistant, with no systematic hours . . . as clearly defined under the Fair Work Act and confirmed through the Fair Work Ombudsman today”.

Commissioner Lee said it was not apparent how the Fair Work Ombudsman could have given such confirmation “as it would turn on the facts as to the nature of her engagement” and was, in any case, found to be incorrect by a Fair Work Commission full bench decision.

“At best, the process followed by . . . the Human Resources Manager, in effecting the dismissal was bungled and incompetent,” he said.

Bed Bath N’ Table submitted a lack of dedicated HR management expertise was likely to have affected its dismissal procedure.

The company said it was “clear from the process undertaken in relation to the dismissal that while Bed Bath N’ Table at the time employed a human resources manager, that human resources manager did not have expertise in relation to the procedural requirements for effecting a dismissal”.

Commissioner Lee said it was a “concession rightly made that the former human resources manager did not manage the process of the termination at all well and did not fulfil the relevant procedural requirements”.

While finding Bed Bath N’ Table did not lack dedicated HR specialists and expertise, he said the “particular human resources manager was incompetent in respect to her ability to deal with the termination of an employee”.

Concluding that the sales assistant’s recordings provided a valid reason after the fact, the commissioner said Bed Bath N’ Table did not notify her of this reason nor give her a chance to respond to it, while the HR manager effectively denied her a support person.

Concluding the dismissal was unfair but that reinstatement was inappropriate, Commissioner Lee sought more information to help determine compensation.