Written and provided by FTMA’s HR Partner, HRAnywhere
Heated discussion leading to termination. Was it a dismissal or resignation?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where the central question was whether a worker had resigned or was dismissed.
The employer argued three key points: employee had resigned. If the FWC found the employee did not resign then the dismissal complied with the Small Business Fair Dismissal Code, and the dismissal was not unfair.
The employee argued what the employer said was a resignation was actually a dismissal following a dispute about after-hours duties, and proper procedures weren’t followed.
In short, an employee at a dance studio was instructed by the studio director to dispose rubbish at the end of the evening. This was not actioned and another employee ended up taking the rubbish out. This issue escalated in a meeting when the studio director said “…if I say you do this, you do that, you do it. If you have an issue, I don’t want you to open your mouth in front of everyone, but you have to book a private meeting with me. If you can’t do it, you can pick up your things, go home and the position is terminated instantly.”
The employee left as he was told and stated to the FWC he was being asked to do tasks outside his duties and even if it was his tasks , it was not of such a serious issue as to justify termination of employment.
The FWC found the employer failed to meet the Small Business Fair Dismissal Code requirements such as explaining issues or where the employee could have a support person ( if requested) and accordingly said the dismissal was harsh, unjust or unreasonable.
The FWC found that failure to take out the rubbish was insignificant to the business and such a minor matter did not justify dismissal. As the worker’s employment was not going to be reinstated, they were awarded compensation of $24,496.54.
If you are experiencing a similar situation and unsure how to manage it, please contact HRAnywhere on 1300 208 828 or info@hranywhere.com.au.
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