Employers should be aware of three recent cases where
employees were found to be unfairly dismissed in arguably
In Anderson v Thiess Pty Ltd  FWC 6568, Mr
Anderson was summarily dismissed for sending a work email that was
highly offensive to persons of the Muslim faith. Despite finding
that the email was in clear breach of Thiess' policies and had
the potential to cause significant reputational damage to Thiess,
the Fair Work Commission awarded Mr Anderson $28,000 in
compensation on the basis that the dismissal was nonetheless harsh
and unreasonable. The Commission found that:
the dismissal was harsh because Mr Anderson was 65 years of age
and would have difficulty obtaining other employment;
the dismissal was unreasonable as Thiess relied too heavily on
a previous verbal warning given to Mr Anderson for engaging in the
same conduct; and
Thiess did not give Mr Anderson sufficient time to accept that
the contents of his emails were inappropriate in the Thiess work
environment and to apologise during the show cause process.
In Camilleri v IBM Australia Limited  FWC 5894 ,
Mr Camilleri was dismissed following an internal audit that
revealed he had made 141 improper expense claims for nights when he
was not actually working away. The Fair Work Commission accepted
that IBM had a valid reason to terminate Mr Camilleri's
employment but said that the dismissal was nonetheless unjust
because there was an excessive delay between Mr Camilleri's
conduct and the dismissal and IBM failed to adequately consider Mr
Camilleri's 17 years of service and his offer to reimburse IBM
for the expenses. The Commission ordered Mr Camilleri's
reinstatement and awarded him 50% of his lost remuneration.
In Dent v Halliburton Australia Pty Ltd  FWC
5692, Mr Dent was dismissed for breaching the company's driving
safety policy when he was speeding in a company vehicle and using
his mobile phone while driving. Two Halliburton employees provided
evidence that they witnessed Mr Dent talking on the phone and
exceeding the speed limit of 5 km/h when he entered the
company's yard. At the time of the incident, Mr Dent was
already subject to a first and final warning for driving while
speaking on a mobile phone. The Fair Work Commission determined
that there was insufficient evidence to conclude that Mr Dent was
using his phone while driving, but accepted the speeding had
occurred, which provided a valid reason for his dismissal. Despite
the finding that the speeding conduct did occur, the Commission
concluded that the dismissal was unfair because Mr Dent was not
given sufficient notice of the disciplinary meeting, and therefore
was denied a meaningful opportunity to respond to the allegations.
Dent was awarded compensation equal to 11 weeks' wages (less
earnings from other work).
So, what message should employers take away from these cases? A
good process is vital in reaching termination decisions. If you are
unsure about what qualifies as a good process in any particular
circumstances, please call us before acting!
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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.
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