Management reliance on flawed process in termination proves fatal

Management reliance on flawed process in termination proves fatal

The Fair Work Commission has ruled the termination of an employee for failing to comply with notice requirements of impending absences and following company procedures as invalid, determining that the decision was based upon an unjust and unreasonable process. It again highlights the care employers must take in dealing with employee issues, particularly when those issues may lead to the termination of an employee.

The employee had worked for the Pegasus Print Group Pty Ltd (Pegasus) for approximately two and a half years as a book binding operator on a full-time basis, and at the time of his dismissal, he worked afternoon shifts between 2 pm and 10 pm Monday to Friday. Pegasus is a business providing integrated operations in direct manufacturing for print, warehousing/logistics and multichannel marketing.

The employee had an unblemished disciplinary record and had not been the subject of any complaint or issue prior to events that commenced in the early evening of Tuesday, 7 September 2021, that led to his dismissal. At about 6 pm, the employee received a phone call from his wife advising him that she had been a close contact to a person who was a confirmed COVID-19 case. Shortly after, he advised his supervisor that he would immediately leave work to have a COVID-19 test and also that he had a sore throat.

He attended a drive-through clinic, but just prior to its closure, he was advised that as he did not have his Medicare card with him, he would need to return the following day. He returned the next day, 8 September, had a test, and sent a text message to his manager advising him that he could not attend work that day as he was awaiting the results of his PCR test.

On the following day, Thursday, 9 September, he again sent a text message to his supervisor advising him that he again could not attend work as he still was awaiting the results of his PCR test.

 At about 3:15 pm on Friday, 9 September, he received a text message advising him of a negative PCR result. Shortly thereafter, he sent a text message to his manager advising him that his result was negative and that he would attend for work the following Monday. He received a text message advising him to immediately come to work.

He responded by advising that as he had just come out of what he described as ‘house arrest’ and as he was still feeling unwell, he would not be able to attend for work.

On Monday, 13 September 2021, shortly after commencing shift, the employee was called to a meeting with his Manager, Operations Manager and supervisor present. During the meeting, he was reprimanded for departing the worksite on 7 September and for his subsequent communications to his manager on 8, 9 and 10 September. A written warning was issued.

On Friday, 1 October, the employee advised his supervisor that he would be absent from work on the following Tuesday, 5 October 2021, as he was having his second COVID-19 vaccination. After experiencing a severe reaction to the jab, he obtained a medical certificate from his doctor, deeming him unfit for work on 5 and 6 October.

He telephoned his manager at about 9:40 am on 6 October 2021, informing him of the situation and his inability to attend for work on the afternoon shift. The manager told him he would see him the next day.

Upon arriving at work on 7 October, the employee was called into a meeting with the General Manager, Operations Manager, and the Binding Manager. He was told that there were issues with his absence on Tuesday, 5 October, and claimed that resulting from the previous issue of a first and final warning on 13 September 2021, he was terminated. The letter of dismissal made reference to the employee’s ‘inability to follow established company procedures’.

In quashing the termination, Commissioner Ian Cambridge noted,

“The employer adopted a severely flawed procedure when dealing with its determination to dismiss the applicant. The employer did not provide the applicant with prior advice of the disciplinary meetings nor a proper opportunity to have a support person present during the meetings. The dismissal of the applicant without valid reason involving established misconduct or capacity inadequacy…an objective and balanced evaluation of all the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable”.

Accepting the applicant’s claim that reinstatement would be inappropriate in the circumstances, the Commission ordered payment of significant compensation of $32,656.00, equating to 26 weeks’ wages.

AJ v Pegasus Print Group Pty Ltd A Wholly Owned Subsidiary Of AAB Holdings Pty Limited – [2022] FWC 664

For queries about employee absences, developing company policies, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 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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