I recently came across a Fair Work decision which stood out to
me because it highlighted a consideration that I have to regularly
remind my clients of when they are seeking advice regarding the
termination of an employee. That is, as well as making sure you
have a valid reason and you follow a procedurally fair process
– you also need to consider the individual circumstances of
the relevant employee.
In the decision I am referring to the Fair Work Commission held
that an anti-Muslim email that vilified those of the Muslim faith
and sought to motivate readers to take political action against
them, had significant potential to damage an employer's
reputation and therefore provided a valid reason to dismiss the
Helpfully, the employer in this case had extensive policies and
procedures in place detailing acceptable conduct in the workplace,
and the employee had been previously given a verbal warning to stop
sending anti-Muslim emails.
However, in addition to considering whether an employer did in
fact have a valid reason to rely on in reaching its decision to
terminate, which in this case the Commission held the employer did,
the Commission also considered the particular circumstances of the
relevant employee in deciding whether the decision to termination
was harsh or unreasonable. In this case, among other things, the
Commission focused on the following:
the employee's age (65), length of service, and good prior
the absence of any formal record that the employee was formally
trained on acceptable email use;
the fact that the employee was not formally counselled or
warned about his earlier non-work related emails;
the investigation / disciplinary process initially led to an
assessment that the employee should receive a final warning, but
this was overridden by senior management and upgraded to a
the prospects of the employee obtaining other comparable
employment was extremely limited;
and given those matters, the Commission deemed the
employer's decision harsh and unreasonable.
In the circumstances the Commission decided reinstatement was
not appropriate as it was probable that the employee would reoffend
given his attitude to the content of the email (specifically, he
genuinely holds the views expressed in the email, and his only
regret was having been dismissed for sending it) - so instead he
was awarded compensation of $28,578.
See Ronald Anderson v Thiess Pty Ltd  FWCFB 478 (30
January 2015) for more information.
So when considering the termination of a person's employment
- remember to focus your attention on the reason, the process and
the individual circumstances of the employee in question, when
considering your unfair dismissl risk.
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.
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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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