A member of the Fair Work Commission has criticised a large business with a dedicated human resources team after it made a number of procedural errors in dismissing a worker for incapacity.
The decision highlights the complexity involved when it comes to dismissal. Time and time again we see employers getting it wrong with the procedure they follow. A valid reason is not enough to avoid an unfair dismissal claim.
An employee with more than eight years of service was dismissed for allegedly refusing to follow a lawful and reasonable direction to return to work.
Unfortunately, the employee was suffering from mental illness and had been on an extended period of sick leave. Although his claim for workers compensation was rejected, the employee had continued to provide medical certificates stating that he was unfit for work.
After a period of more than three months absence on unpaid leave, the employer commenced a capability review process. The employer invited the employee to participate in this review process and even granted the employee an extension of time to submit medical evidence that he was fit to work.
But when the he failed to submit any material, the employer terminated the employee. Inexplicably, the employer decided to communicate its decision via email. The employee returned all company property, including a motor vehicle and phone in his possession and was paid one month’s notice.
Unsurprisingly, the employee sought legal advice and brought a claim for unfair dismissal. In particular, the employee alleged that the dismissal had been unfair because the employer had not attempted to contact any of his treating medical practitioners before terminating his employment.
What this means for you:
The decision highlights the complexity involved for those contemplating dismissal. Indeed, the Commissioner observed that similar procedural errors in the particular approach taken are frequently identified in successful unfair dismissal cases, with even large employers seemingly to unable to avoid such errors.
Time and time again we see cases highlight that a valid reason is not enough. You must also afford the person procedural fairness, and consider whether the particular circumstances may mean that the decision is harsh, unjust or unreasonable.
How HR Assured can help:
HR Assured offers a smarter solution to ensuring that your HR management practices comply with Australia’s complex, and constantly changing, workplace laws.
HRA Cloud is our cradle to the grave employee lifecycle management tool that assists you in managing the tricky situations that are bound to arise within your business.
The termination tab within your HRA Cloud account contains a number of workflows which will assist you in terminating employment; whether this be for poor performance, for misconduct, for incapacity, by reason of abandonment or simply because the employee you hired is just not working out.
The workflows contained within your HRA Cloud account, combined bespoke employment documentation (which is constantly updated by our lawyers) will give you the tools you need to manage the risk when terminating employment.
To complement our technology solution, we offer a dedicated team of workplace relations specialists who are available support you and your business around the clock and full coverage (with no excess) for legal costs and damages up to $2 million in the event that an employment-related claim is brought against your business!
For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.
Case: John Finnegan v Komatsu Forklift Australia Pty Ltd  FWC 2433