By Lauren Drummond

The Fair Work Commission (FWC) receives approximately 14,000 unfair dismissal applications each year. It is the most common workplace dispute involving dismissal. As it is the start of a new Financial Year, it is a good opportunity to reflect on some of the key learnings from the FWC’s unfair dismissal jurisdiction from the previous year.

Procedural fairness

An application for unfair dismissal will be successful if the dismissal is found to be ‘harsh, unjust or unreasonable’. Whether an employee is notified of the reason and given an opportunity to respond to the reasons for the dismissal relating to either capacity or conduct, is a factor to be considered.

Many employers have been caught out by flawed investigation processes, which have resulted in findings that the dismissals were procedurally unfair and thus unreasonable.

Deputy President Asbury awarded compensation to a worker due to the failure of the employer to notify the worker of all the allegations against her during the initial disciplinary meeting (Waite v Serco Australia Pty Ltd (2018)).

It was alleged the worker had fallen asleep during her shift. When the allegations were put to the worker, it was not disclosed that the worker’s colleague had provided the employer with photographs of her sleeping. The failure of the employer to provide the worker with an opportunity to respond to all of the allegations, including failing to notify the worker that it proposed to dismiss her on the basis of her dishonesty during the investigation, resulted in the dismissal being unreasonable.

In a similar decision (Jarmain v Linfox Armaguard Pty Ltd (2018), a security guard was awarded compensation when the FWC identified the following flaws in the employer’s investigation process:

• the interview process was unreasonable and unjust, the employee was “ambushed” by the investigation meeting without prior warning of the events to be investigated;
• the employer chose the employee’s support person for the meeting, which amounted to an unreasonable refusal to permit the employee to have a support person.

Dismissal at employer’s initiative

In a decision involving a nurse who purported to resign after being summoned to attend a disciplinary meeting, the FWC traversed those categories of dismissal that may be said to be “at the initiative of the employer” under section 386(1)(a) of the FW Act (Bupa Age Care Australia Pty Ltd v Tavassoli (2018)).

The decision draws a distinction between dismissals “at the initiative of the employer” and those types of dismissals that fall into the category of “forced resignation” under section 386(1)(b). Although the nurse had purported to tender her resignation, the FWC found the surrounding circumstances should have indicated to the employer why it should not have been accepted:

• the employee was visibly confused and upset (writing the wrong date on the resignation letter and attempting to resign without notice); and
• the employee’s cultural factors and lack of English language skills contributed to her distress and irrational behaviour.

Accepting the resignation in such circumstances amounted to dismissal at the initiative of the employer.

Employers should assess the surrounding circumstances in considering whether an employee’s verbal resignation should be accepted, particularly if there are factors that may contribute to the employee being distressed. In such situations, employers should consider whether the employee be given a further opportunity and more time to assess if they are intending to resign.

Contract for specified time

Last year, the Full Bench confirmed that a dismissal may still be at the initiative of the employer in circumstances where an employee’s employment is subject to a series of “outer limit” contracts.

In Khayam v Navitas English Pty Ltd (2017), the Full Bench stated that the analysis must be conducted by reference to the termination of the employment relationship, and not the employment contract.

It is not unusual for employers to include an end date in an employment agreement, usually for a period of 12 months and then renew the agreement at the end of the 12 months for a further period.

Previously, it was said that these contracts ended by the effluxion of time and were not dismissals at the employer’s initiative. However, in light of the decision of the Full Bench, failing to renew a contract after successive fixed-term agreements may amount to a dismissal and thus enlivening protection under the unfair dismissal jurisdiction.

Each case will turn on an analysis of the facts and circumstances of the employment relationship itself, not merely the terms of the contract.

Employers should be aware of the potential of unfair dismissal risk for employees that are employed under these types of “outer limit” contracts.