Casual Sales Assistant termination unfair
A short term casual employee’s termination has been ruled unfair due to a failure to provide procedural fairness, highlighted by not giving the employee an opportunity to respond, failing to allow a support person to be present, and overreacting to issues concerning the employee’s behaviour. Moreover, the FWC has been highly critical of the role played by the company’s HR Manager stating “she was incompetent in respect to her ability to deal with the termination of the employee”.
The employee commenced employment as a casual sales assistant with Bed Bath `N’ Table (BBNT) on 25 June 2018 and continued in the role until her dismissal on 1 March 2019. Her duties involved retail sales, customer service, stock replenishments as well as various other duties.
The FWC determined that although the employee was engaged as a casual, she had been employed on a regular and systematic basis for over six months and held a reasonable expectation of continuing employment. On that basis, it was ruled she was eligible to make an unfair dismissal application.
At the hearing, the employer acknowledged that she had never been disciplined or spoken to regarding any issues with her performance or conduct during her employment, nor had she been issued with any warnings either verbal or written. Further, no customer complaints, employee complaints, conduct complaints or performance complaints or issues had been raised with her.
The termination resulted from a series of incidents involving the employee, including:
Failing to follow company procedure when absent from duty for a single shift;
Behaving at a meeting with her Store Manager on 26 February 2019 in a manner deemed to be disrespectful, insubordinate and intimidating; and
Displaying misconduct in a series of emails sent to her employer on 26 and 27 February.
Commissioner Lee accepted the employee’s argument that it was common for employees, including herself, to notify absences via text message, even though this was a breach of the company policy. Further, her behaviour, although not entirely appropriate, was not considered as extreme as suggested by BBNT and was the result of the employee seeking legitimate responses as to why her shift hours had been considerably reduced over several months to the point of being rostered a single 5-hour shift each week.
In attempting to organise a meeting to raise their concerns, BBNT’s then National HR Manager made a series of mistakes including an incorrect claim that only 24 hours notice was required to be given prior to the meeting and refusing to provide witness statements or complaint documentation prior to the meeting. As noted by Commissioner Lee, “At best, the process followed by (the) Human Resource Manager, in effecting the dismissal was bungled and incompetent”.
Following the employee’s failure to attend a scheduled meeting, she was forwarded a written notice of termination.
Commissioner Lee was critical of the actions of the employee who chose to record interviews of meetings without informing her employer. The Commissioner noted that in several other cases, recording a conversation in secret is an action contrary to the duty of good faith and fidelity to the employer, potentially undermining the trust and confidence required in an employment relationship and hence, warranting dismissal. However, in this situation, the Commissioner determined that the employee’s covert actions alone did not warrant her dismissal.
The dismissal has been ruled unfair with submissions on penalties requested.
AC v Bed Bath `N’ Table  FWC 3706 (13 August 2020)
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