- Tough lessons learnt in unfair dismissal for casual
We are looking back at the 2020 Fair Work Commission Unfair Dismissal case, Angele Chandler v Bed Bath N’ Table Pty Ltd, which highlighted key issues relating to unfair dismissal for casuals along with the importance of due process.
The case determined that despite a valid reason for Chandler’s termination existing, the company’s incompetent National HR Manager had contributed to bungling the employee’s sacking, resulting in it being unreasonable. Say what?!!
In an earlier hearing before the Commission, arguments were heard regarding whether a casual employee could claim unfair dismissal. This particular summary can be found here.
The HR Manager’s bungled termination
In this particular case, the Commission found that the National HR Manager was “incompetent in respect of her ability to deal with the termination of an employee”. In an overall messy process, the National HR Manager relied on a number of invalid justifications for terminating the employee, while avoiding due process for another allegation which was, in fact, a valid reason for dismissal. Therefore, despite a valid allegation existing for a termination, the National HR Manager failed to allow the employee to respond to it, and therefore the dismissal was deemed unreasonable.
What does this mean for employers?
Ensuring that due process is followed during disciplinary and termination processes is critical to the employer’s ability to defend an unfair dismissal claim, even where there is a valid reason for a termination. Therefore employers should carry out the correct process each and every time. It is also extremely important to check the credentials of your appointed HR resource. They should have abundant recent experience in handling disciplinary and termination matters – this goes for both internal and outsourced providers. If they don’t stack up, we recommend engaging a specialist.
Casuals and unfair dismissal
Despite initial debates in the Commission as to whether Chandler could claim unfair dismissal as a casual employee, the Fair Work Commission determined that even though the employee had been classified as a casual by the employer, the employee was entitled to claim as they had been employed continually for over six months. In coming to this decision, the Commission considered the employee’s rosters, the ongoing contract of employment, and whether the employee had an expectation of ongoing employment and ultimately decided the employment was regular and systemic.
What does this mean for employers?
Essentially, this case further clarified the current stance on how casual employment is to be handled by the Commission and could mean that more casuals may be entitled to make unfair dismissal claims in the future.
Despite this decision, we are keeping a close eye on possible upcoming reforms for casual employees.
Get in touch with the team at Industryus if you would like to find out more about how we can support your organisation.
- Received an Unfair Dismissal Application?
Q. I’ve just received an Unfair Dismissal Application in my inbox after terminating the employee recently. I have no idea what to do next. Can you help?
A: Receiving notification that an employee is claiming unfair dismissal against your business is often difficult news to learn. In many cases, the employer might feel as though they had provided significant support and opportunities to the employee prior to the termination, only to be repaid with an unfair dismissal application.
Unfair dismissals can be daunting to receive, but it is almost inevitable for any employer that they will at some stage receive an application due to the ease and low cost of lodging one. Below is a rundown of the process and things to consider.
In the first stage, the employer will receive email notification from the Fair Work Commission of the Unfair Dismissal Application which should include the following documents; a Form F2 – Unfair Dismissal Application which sets out the reasons why the former employee feels that the dismissal was unfair; a Notice of Listing which states when the conciliation conference will be held; and a Form F3 – Employer’s Response to Application for an Unfair Dismissal Remedy form which enables the employer to respond in writing to the claims.
Using the relevant form, the employer returns their response to the Fair Work Commission and also serves it on the Applicant within seven (7) days. It is recommended that the employer engages a specialist in the Unfair Dismissal space (such as Industryus HR) as only a specialist will be abreast of the relevant legislation and how this can be used to get the best outcomes for the employer.
The next step is the conciliation, where the aim is for the Conciliator to assist both parties to reach a mutually agreed resolution. For this stage, again, it is highly recommended that you appoint a specialist to represent you. We say this because this step is about understanding what is a realistic outcome for the situation at hand and engaging the right strategy to get there. A specialist will also be able to talk to you about your chances of success in the next stage which is arbitration (if conciliation was unsuccessful) and what this might mean for your business in terms of time required for the process, legal costs, costs to reputation etc.
If you receive an Unfair Dismissal Application and would like to talk to Industryus HR about your options, call 07 5655 4047 or click here.