Failure to maintain proper documentation during termination costs employer over $15,000
TheFair Work Commission(FWC) recently dealt with an unfair dismissal case where a worker challenged the validity of her dismissal from a Melbourne-based employer.
The worker argued her termination lacked proper process, disputing claims about warning letters and alleging she wasn't given a fair opportunity to respond to misconduct allegations.
The worker's challenge to the dismissal centered around a December 22, 2023 meeting where she was terminated, followed by what she described as an after-the-fact investigation process that she believed was designed to justify the earlier dismissal decision.
Unfair dismissal evidence in workplace
The worker was employed as a chef since June 2023 on a sponsored student visa arrangement set to expire on September 7, 2024. She worked at the employer's Melbourne CBD location in the Emporium building, where her primary role involved preparing meals for restaurant staff and assistants.
The case hinged on events from December 22, 2023, when a manager named Mr. Zhou conducteda termination meetingwith the worker. This conversation was recorded with both parties' consent and later translated from Mandarin. After this meeting, the branch manager sent a letter suspending the worker with pay and outlining misconduct allegations.
The worker believed she had been dismissed during the meeting with Mr. Zhou and did not return to the workplace afterward. The employer later claimed Mr. Zhou wasn't authorized to terminate her employment.
Alleged warning letters and disciplinary process
The employer presented four allegations during their investigation: verbal harassment of a co-worker on October 1, 2023, unsafe handling of a knife on October 28, 2023, inappropriate language on December 10, 2023, and refusing a work order on December 18, 2023.
A crucial exchange from the December 22 meeting, as documented in the decision, revealed:
[The manager]: The first point is that we have sent three warning letters to you in the past six months.
[The worker]: None. Please confirm what you said: None. No one had sent me any warning letter... Can you present it to me first?
Regarding the investigation process, the Commission stated:
I do not accept that [the worker] has been afforded procedural fairness or that [the employer] has applied an appropriate amount of rigour and due diligence into the allegations made against her prior to forming a decision to terminate her employment.
FWC reviews misconduct allegations
The Commission examinedeach allegation and found evidence of only one instance of misconduct on December 18, 2023. In its decision, the Commission noted:
I have not been satisfied that apart from the incident on 18 December 2023, [the employer] has articulated any misconduct on the part of [the worker] that would amount to a valid reason to bring her employment to an end... On its own, this does not amount to a valid reason to bring her employment to an end.
The Commission specifically addressed theabsence of warning lettersin the context of termination requirements:
Terminating an employment relationship is a serious matter, particularly so in cases of serious misconduct. It is well established that prior to making this decision an employer should take steps to clearly provide an employee with due warning and an opportunity to rectify behaviour that is clearly not so offensive or adverse to health and safety as to justify otherwise.
The Commission determined the dismissal was harsh, unjust, and unreasonable. While reinstatement was considered, the Commission found the employment relationship had deteriorated beyond repair.
The Commission calculated compensation based on the worker's likely employment period until her visa expiry, lost earnings, and a 5% reduction for the single proven instance of misconduct. The final compensation order required the employer to pay $15,622.48 plus superannuation of $1,796.59, to be paid within 14 days of the decision.
This decision underscored the Commission's position that while misconduct occurred on December 18, 2023, this single incident did not constitute a valid reason for termination. The Commission found: Even if I were to accept [the employer's] version of events I would still not find there was a valid reason for terminating [the worker's] employment.
https://www.hcamag.com/au/specialisation/employment-law/when-verbal-warnings-arent-enough-missing-warning-letters-lead-to-unfair-dismissal/518520
