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Unfair Dismissal – Back in the Headlines

By David Bates, MD, Better HR – Australia’s leading employment relations service for employers

A recent case handed down by the Fair Work Commission reminds us – once again – of the importance of following a fair process when dismissing  employees.

In this case the employee, Mr Sam Guido, was dismissed for serious misconduct by his employer, Akzo Nobel Pty Ltd. This dismissal occurred after Mr Guido remarked ‘this is fu*#ed’ when given instructions by his supervisor. A heated argument then followed that involved both parties raising their voices and Mr Guido possibly calling his supervisor ‘a fu*#ing c*#^’. Oh dear.

Furthermore, at the time of the incident the employee was subject to a final written warning after being spotted drinking at a local pub while on sick leave.

In it’s decision, the Commission concluded that although the dismissal neither ‘unjust’ nor ‘unreasonable’, it was ‘harsh’ and therefore amounted to an ‘unfair dismissal’ under the Fair Work Act 2009. The Commissioner based this decision on two key factors:

1. The supervisor had himself previously sworn at an employee and had not been subject to disciplinary action, and

2. Mr Guido had not been afforded ‘procedural fairness’ during the dismissal process.

He was awarded compensation by the Fair Work Commission.

This case highlights once again just how important consistency and proper processes are when it comes to dismissing employees, even if the employee has engaged in completely unacceptable behaviour. Following the processes set out in Better HR might just have saved the day.

To read more about  this particular case please visit the Fair Work Commission site here.