In Blackford v Bamboo Direct Pty Ltd  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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).