EMPLOYERS MUST GET IT RIGHT ON POLICY TO BE A FAIR DISMISSALOctober 06, 2022
APPEALS to the Full Bench against an adverse result are difficult to achieve. A case this week identified the absence of a specific Policy which the employee had been accused of breaching was a good reason to overturn the result.
One of the most common questions on the matter of “Unfair Dismissal” is what determines it as “unfair”?
The Fair Work Commission uses the Fair Work Act 2009, Australia’s legislation on workplace matters and rights, to decide if a dismissal is unfair.
An employer should not dismiss an employee if it is harsh, unjust or unreasonable. The criteria to determine what is considered harsh or unreasonable is set out in Section 387 (a) of the Fair Work Act
a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
An ‘unjust’ dismissal is when the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them while an ‘unreasonable’ dismissal is where the evidence does not support the decision to dismiss the employee.
These criteria and examples were taken into consideration when the Full Bench recently granted foreign exchange dealer Mr John Bracken’s appeal to have a re-hearing after he lost his Unfair Dismissal case against OzForex.
Mr Bracken’s employment with OzForex was terminated in May last year following an investigation into a $23,000 fraudulent transaction. While he was not directly involved, his previous employer claimed he had failed to comply with company policies and procedures.
In April this year Commissioner P Ryan found there was valid reason for the dismissal, his decision to dismiss Mr Bracken’s application weighing heavily on the serious breach of non- compliance with policy.
Mr Bracken requested a re-hearing on the basis that Commissioner Ryan’s decision was in error, as there was no written policy or procedure that he was accused of being in “serious breach” of.
The Full Bench granted Mr Bracken’s right to appeal after both parties filed further submissions in August, where OzForex confirmed that the policies didn’t exist, nor was there evidence that Mr Bracken was ever given direction to follow such policies that he was in apparent breach of.
While OzForex submitted other examples of Mr Bracken’s conduct, it appears Commissioner Ryan made his decision primarily based on this one example of misconduct without any evidence to support.
The Full Bench found that “In a case where the applicant employee was dismissed for misconduct, a lack of satisfaction that there was a valid reason for dismissal will almost inexorably lead to a finding that the dismissal was unfair”