Harsh Dismissal: That Voice Mail Message and a Lesson for Employers.

Harsh Dismissal: That Voice Mail Message and a Lesson for Employers.

Employment Law

Not happy about your employee’s conduct and considering dismissal? First, take some time to reflect on your obligations and your employee’s history of employment.

As widely reported, on 7 September 2017 the FWC ordered Tassal Group Limited T/A Tassal Operations Pty Ltd to pay compensation to Ms Chapman in the sum of $8229.00.

That Voice Mail Message

Ms Chapman was employed by Tassal as a level 1 processing employee. Her duties included scaling, slicing, weighing and packing fish.

On 25 April 2017, Ms Chapman called a supervisor at Tassal and left the following voice mail message:

“Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side”

Tassal’s Response

Tassal alleged that the conduct amounted to a breach of its Code of Conduct and to an unacceptable risk to Tassal and its employees.

A letter was given to Ms Chapman when she arrived for work on 27 April. The letter contained the allegation of misconduct and advised that she was to be stood down with pay and was required to respond to the allegations by noon on 28 April 2017.

“You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”

Ms Chapman’s Reply

Ms Chapman responded by email on 27 April at 7:06 am:

“This is my response to the allegation against me.

Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day.

It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got. As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.

Would it have been wiser for mw to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.

It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”

On 27 April 2017 at 3.47 pm. Ms Chapman sent a further email:

“Dear Duane, I have waited all day for a return phone call from Seonna in regards to whether I am required to attend a meeting tomorrow to discuss the allegations directed towards me. The letter stated that I must respond in writing by 12.00 noon Friday 28 April 2017, and I have done that via email to you, however the letter did not state if I was required to be in attendance on the Friday. I rang Seonna and she assured me she would call me back with the relevant information I needed. She hasn’t done that.

I would also like to add that I feel managments (sic) constant quest in turning ‘MOLEHILLS INTO MOUNTAINS’ is detrimental to our company’s integrity and our code of conduct. The “GO IN FOR THE KILL” mentality is rather disturbing and completely against Tassal’s moral code in my opinion. Management is also responsible for their staff’s wellbeing, although it seems staff are ignored in favour of impressing higher management. I did nothing untoward to deserve that letter, and the fact that I drove all the way from Waterloo, only to be handed a letter and told to leave was totally unprofessional and unforgivable on managements (sic) part.

I would be more than pleased to discuss this matter further with Mark Ryan if given the opportunity. I respect you, and I await your personal response.”

Following further correspondence, Tassal made the decision to terminate the employment of Ms Chapman.

Finding

FWC Deputy President David Barclay found that there was a valid reason for the termination and that Ms Chapman had chosen to over indulge in alcohol on the day before she was due to work to such an extent as to be unable to fulfil her obligations to attend work the next day.

However, the FWC Deputy President David Barclay also found that the termination was harsh.

Tassal relied on a previous incident- a further alleged breach of the Code of Conduct as satisfying the requirement for a warning about the unsatisfactory performance. FWC Deputy President David Barclay disagreed, the previous warning was not for the same conduct and therefore Ms Chapman should have been given a warning:

In this case we have a misguided approach to the employer to the effect that the Applicant has overindulged (in alcohol) to such an extent as to result in her being incapacitated for work in circumstances (unlike the previous instance) where there was no extenuating circumstance which might constitute a justification for that conduct. That constitutes the valid reason. However because this is the first time the Applicant has conducted herself in that manner in 5 years of working for the Respondent to terminate her employment was harsh. I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate.

Lesson for Employers

Employers proposing to terminate employment for unsatisfactory conduct need to carefully consider the history of an employee’s conduct and the appropriateness of a warning vs dismissal.

If you have any questions on the above, please contact us.

You’re Fired! A summary of summary dismissal

You’re Fired! A summary of summary dismissal

Employment Law

A worker may be dismissed with immediate effect if they are in serious breach of their obligations, subject to compliance with the employment agreement and other applicable law. Employers proposing to dismiss an employee need to carefully examine their obligations and the circumstances leading to the proposed dismissal.

Termination of employment is not a pleasant experience for anyone. In some instances, an employer may find themselves with no choice, and where those circumstances are sufficiently serious, a summary dismissal may be in order.

It is important for employers to understand their obligations with respect to summary dismissal. This is a risky area of law. Employees have rights that must be respected and a wrong move could end up costing a business much more than anticipated.

The key question for an employer is if appropriate grounds exist for summary dismissal. This article will examine this question. Advice should be obtained and this article will not give you enough information to make a decision in this area.

Laws that apply to a termination of employment

Termination of employment may occur for many different reasons. An employee may resign, be dismissed, or their position may be made redundant. Both State and Commonwealth legislation may apply to employment, as well as any applicable awards, industrial agreements, and the employment agreement itself. Each applicable obligation will determine the steps to be taken by an employer in relation to a specific dismissal.

Termination of employment is based on the law of contract. At common law, a contract may be terminated in response to a breach of an essential term, a fundamental breach, or repudiation.  Repudiation occurs where a party indicates that it is unwilling or unable to perform its obligations in a significant respect. This may be shown where there are a series of minor breaches which taken together show a disregard for the obligations imposed by a contract.

What is a Serious Breach?

For an employer to exercise the power of summary dismissal under common law, there must be a serious breach of a term of employment, and that term may be express or implied.

The following may amount to grounds for summary dismissal under common law:

  • Serious misconduct ( positive, intentional, or wilful wrongdoing);
  • Wilful refusal to obey a lawful and reasonable instruction; and
  • incompetence and neglect.

If an employer proposes to dismiss an employee for a serious breach, it must make an assessment of the conduct said to justify dismissal. Case law provides guidance on which circumstances are sufficiently serious. In Rankin v Marine Power  [2001] VSC 150. a manager’s negligent supervision of an overseas operation was held to be a breach of duty but not sufficiently serious to justify summary dismissal. In that case, the employer was ordered to pay the employee the amount of $169,612.35 representing damages for failure to provide proper notice and accrued long service leave entitlements.

Where a breach by an employee has occurred, it is important for an employer to make an assessment and to take appropriate action. A failure by an employer to act on breaches by an employee may be taken to be a waiver of the employer’s right to terminate the employee for those breaches.

Statutory References

There are also statutory definitions and obligations to consider. There are a number of references to serious misconduct in the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth). These statutory definitions and obligations are important as they determine the subsequent rights of a dismissed employee.

Relevant statutory obligations were discussed in the case of  Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033:

The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

Good Resources

If you are an employer considering a summary dismissal, you should review the following resources:

  • The Small Business Fair Dismissal Code provides protection against unfair dismissal claims, where an employer follows the Code. The Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this. A small business is defined as any business with fewer than 15 employees;
  • The Fair Work Commission’s Unfair Dismissal Benchbook; and
  • The Fair Work Commission website

Conclusion

Summary dismissal is a complex area of law. There will be circumstances that justify a summary dismissal but an employer should carefully examine those circumstances against the applicable law before taking action. A failure by an employer to act on breaches by an employee may be taken to be a waiver of the employer’s right to terminate the employee for those breaches.

When examining obligations of an employer, applicable statutory obligations should be examined followed by the employment contract and any applicable award or industrial agreement. Only then can an employer understand their obligations with respect to termination.

Please contact us if you have any questions on the above.