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UpdatesSep 16, 2019

‘Very bad employer’ must pay $20,000 for probation period dismissal

An employer who apparently believed he had “carte blanche” to dismiss an employee on probation has received a very expensive lesson.

An employer who apparently believed he had “carte blanche” to dismiss an employee on probation has received a very expensive lesson.

Richard Trainer, who runs M4 Marketing in Perth, was hit with a $20,000 fine after the employee filed an unfair dismissal claim with the Western Australian Industrial Relations Commission (WAIRC).

The WAIRC also ordered Mr Trainer to reimburse the employee for $3,047.83 in underpayments, plus $9,412 between three other employees he had also underpaid.

In the unfair dismissal hearing, Commissioner Damian Matthews heard that the employee on probation had been working for about 9 weeks without incident, before Mr Trainer dismissed her over email without warning.

Mr Trainer, who failed to appear at the unfair dismissal hearing, contended in his email to the employee that she “had not been performing her role in accordance with expectations and the agreed rate of ‘website builds’ per week”.

The employee disputed this “entirely”, which Commissioner Matthews accepted.

“She gave evidence she was doing a good job and I have no reason to disbelieve her. She appeared to me to be entirely honest and credible,” Commissioner Matthews said.

Mr Trainer also contended in his email that the employee’s employment contract provided for a 3-month trial.

Commissioner Matthews read the contract and found this wasn’t the case.

“There is no reference in it to a 3-month trial or any probationary period,” Commissioner Matthews said.

Further, he found the employment contract had a “nonsensical” employer name.

The employee brought a case against ‘The Trustee for M4 Unit Trust’, but on her employment contract, it stated the employee was ‘M4 Unit Trust as Trustee for the M4 Unit trust’.

“That description of an entity seemed nonsensical to me,” Commissioner Matthews said.

“On the basis of the applicant’s evidence, I am of the view that [the employee’s] true employer was Richard Trainer.”

Probation does not provide employer ‘carte blanche authority’

Irrespective of there being no reference to a probationary period in the employee’s employment contract, Commissioner Matthews said “it is still possible for a dismissal to be unfair where it occurs during a probationary period.”

“A probationary period does not give an employer carte blanche authority to treat people however they like,” Commissioner Matthews said.

“The circumstances of [the employee’s] dismissal were certainly unfair.

“You cannot simply overnight, or suddenly, tell someone they are not performing at the expected level and sack them.

“An employer has to discuss any shortcomings identified and give the employee a chance to improve.

“An employee has to be warned of the implications of not improving and given a chance to improve and to complete their obligations under the contract.

“That is what fairness requires, you cannot just unilaterally sack someone on the basis of alleged poor performance without more, even if the person is on probation.”

Commissioner Matthews said he had “no hesitation in finding that the termination of [the employee] was unfair”.

‘Earnest employee awarded maximum compensation

Commissioner Matthews said it was “fair enough” that the employee did not seek reinstatement with “clearly a very bad employer”, noting that the employer also “did not come along to explain his concerns with [the employee’s] performance”.

By contrast, he found the employee to be “earnest”.

“On the basis of [the employee’s] evidence and her presentation in court, which was one of an earnest and capable human being, I have no reason to believe that she would not have gone on performing at a good level into the future and that [the employer], short of operational difficulties within the business, would have continued to employ her,” Commissioner Matthews said.

“I have not heard anything from [the employer] about any difficulties within his business, so I have no basis whatsoever upon which to come to any conclusion other than [the employee] would have continued in the employment of the respondent into the indeterminate future and for that reason I order the maximum compensation under the Industrial Relations Act 1979, which is 6 months’ of salary, which in [the employee’s] case would be an amount of $20,007.”

“So, the order will be that Mr Trainer pay to [the employee] the sum of $20,007 forthwith.”

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