In Blackford v Bamboo Direct Pty Ltd [2011] FWA,Fair Work Australia (FWA) held that an employee's conduct constituted a valid reason for dismissal but that it was 'harsh' for procedural reasons.
Ms Blackford, the employee, had a history of conflict within the company and had, shortly before the critical event, been demoted from her position as Administration Manager by the Managing Director, Mr McHeyzer.
Mr McHeyzer later became aware of a conversation Ms Blackford had had with the lady who was due to take over her previous role (Ms Lia). During that telephone conversation, Ms Blackford was highly critical of Mr McHeyzer, complained to Ms Lia about her taking over her job and indicated that she would not cooperate with Ms Lia when she took up her position.
Mr McHeyzer subsequently dismissed her for serious misconduct, giving evidence at the hearing that a combination of factors, including undermining morale and accounting errors, had led him to the conclusion that her continued employment was untenable. Witness evidence given at the hearing tended to confirm those views. In an email outlining the reasons for dismissal, she was told that her services would be terminated with three weeks' pay in lieu of notice. It also stated that if she wanted to discuss the matter in person, she could do so.
In his decision, the Commissioner felt compelled to ignore the earlier performance issues (which he agreed were valid), as they had not been cited as part of the reason for dismissal. As her conduct during the telephone conversation was stated as the reason for her dismissal, that alone needed to amount to a valid reason for dismissal. On the evidence, the Commissioner was satisfied that her conduct did amount to a valid reason. The first limb of the test was therefore satisfied.
However, under s.387 of the Fair Work Act 2009, he then had to go on to consider the second limb of the test, namely whether, despite the existence of a valid reason, her dismissal was nevertheless 'harsh, unjust or unreasonable'. He found that as Mr McHeyzer's email had in fact dismissed Ms Blackford, she was effectively denied the opportunity to respond to the allegations. It followed logically that she was also denied the right to have a support person present.
Slightly puzzlingly, the Commissioner also commented that Ms Blackford "was not warned about her unsatisfactory conduct prior to the termination..." The test under s.387 only contemplates such a warning in relation to 'unsatisfactory performance.' Her (previously poor) performance was not, as he had already stated, the issue here.
Reinstatement was ruled out and s.392 (3) of the Fair Work Act 2009 requires compensation to be reduced where the employee's misconduct contributed to the decision to dismiss. Accordingly, despite finding that the dismissal was 'procedurally harsh', the employee was awarded only two weeks' wages as compensation.
For more information about this update or any other employment matters, please contact Tim Lethbridge or Kylie Wilmot on (08) 9321 3755.
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