Dismissal ruled unfair due to deficiencies in employer management

Dismissal ruled unfair due to deficiencies in employer management.png

Dismissal ruled unfair due to deficiencies in employer management

A recent Fair Work Commission decision upholding an unfair dismissal application highlights additional challenges that employers may face in managing employees during times of pandemic, including working from remote locations.

The case involved a Field Sales Executive employed by Allpet Products (Allpet), a family-owned business manufacturing, marketing and distributing pet products to Australian specialty pet retailers. The employee (CP) commenced employment on 12 March 2018 and was terminated on 14 April 2020, due to what was termed `performance issues’.

CP was based in Adelaide and for the first 12 months focused on the South Australian market, and to a lesser extent, Tasmania and the Northern Territory. It was acknowledged that her role was autonomous in nature, and in addition to achieving specific sales targets, required her to make ongoing contact with clients, often through remote means such as phone calls, emails, and laptop communications. After 12 months, she also became responsible for the Queensland area, which increased her workload.

Along with her colleagues, she was required to submit weekly `run sheets’ but failed to do so on numerous occasions.

However, Deputy President Anderson expressed some sympathy towards CP and believed Allpet failed to provide sufficient support to her. While at times acknowledging she was struggling to cope, her workload increased when the business unilaterally reduced working hours by 20% in response to the pandemic. He accepted evidence that she often worked beyond and outside her ordinary hours without additional compensation, as well as being required to undertake work in unfavourable conditions including her car, cafes and public rest areas.

There had been attempts to address areas of concern with her but often with a lack of objectivity or attempt to determine the facts. As Deputy President Anderson commented,  “Ultimately Allpet applied an unfair disciplinary approach: a spur of the moment performance meeting (31 March 2020) then a week later a formal warning letter signed by not one but all three directors (6 April) and then a week later dismissal (14 April 2020)”.

Shortly after the issuing of the written warning, one of the Directors visited her Instagram account and found what she believed to be evidence of personal activities conducted on company time. The director also discovered that the salesperson had not disclosed that she had previously run a pet-chaperoning business, considered by the director to potentially be in competition.

The employee was not given an opportunity to respond to the latter allegations and was, in fact, summarily dismissed.

In the circumstances, Deputy President Anderson determined there was no valid reason for her dismissal, and granted an amount of $9,120.00 in compensation. He noted that there were deficiencies in her performance, particularly in relation to her failure to follow reporting requirements, and factored this into his assessment.

Kizuri Capital Pty.Ltd, Maycorp Pty Ltd and Cricklewood Captial Pty Ltd T/A Allpet Products [2020] FWC 5332 (20 October 2020)

For queries about managing performance, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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