Dismissed employee succeeds in unfair dismissal claim

Dismissed employee succeeds in unfair dismissal claim

Dismissed employee succeeds in unfair dismissal claim

The Fair Work Commission has awarded compensation to a dismissed female employee after determining that there was no valid reason for her dismissal and that her employer had failed to notify her of the reasons for her dismissal.

‘Mrs G’ commenced employment as an Accounts Assistant with Simsai Construction Group (Simsai) on 10 December 2013. Until her dismissal, Mrs G had worked from home for a minimum of 35 hours per week, making occasional visits to the company’s office based in Perth.

Simsai claimed that they had undertaken a review of its business needs and decided that Mrs G’s duties could best be performed in the office over 20 hours three days per week.

On 23 June 2023, one of the company’s directors contacted her to tell her the business was proposing to change software and hire an accountant and that this would lead to a potential reduction in her hours of work to 20 per week. She was also told that the business would require her to work from the office moving forward.

Mrs G told the director that she had home-schooling arrangements and that the proposed reduction in hours would be financially difficult for her family. She requested that the proposal be put in writing so that she could understand the terms.

A new accountant was subsequently hired.

Simsai did not provide any further information to her until 23 August 2023, when the director again called to inform her that as a result of the proposed restructure, she would be offered reduced hours of work and would be required to work in the office.

The director asked her to confirm by 25 August 2023 whether she wished to agree to the new arrangements. She emailed him and requested the proposal be put in writing. She also asked what the consequences of her declining to agree to the new arrangements were.

The business replied by email on the same day, offering her a role as a Claims Officer working in the office, commencing in mid-September. She replied that she was unable to accept the offer and suggested she expected the business would treat her refusal to accept the offer as a redundancy.

On 28 August 2023, the business wrote to her and stated that due to her refusal to accept the new role, her employment would cease on 1 October 2023. Later the same day, she received a Termination Letter which identified the reasons for her dismissal as “Ineffective communication and the resulting performance Issues due to working from home and unavailability at office in line with our accounts department restructuring”.

Deputy President Melanie Binet noted that Simsai provided no evidence that her communication was ineffective or that there were any problems with her performance. The business failed to notify her of the reasons for her dismissal, nor did it appear that she was given an opportunity to respond to the issues raised in her Termination Letter.

The Deputy President determined that the dismissal was unfair and ordered a remedy of $5,000.

Mrs LG v Simsai Construction Group Pty Ltd (U2023/9983) 29 February 2024

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For queries about Working From Home, restricting, communicating with employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

Ref: 428.0424

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