TGB's Belal Moraby writes about the need for procedural fairness leading up to the dismissal of a worker.
TGB’s Belal Moraby writes about the need for procedural fairness leading up to the dismissal of a worker.
The Fair Work Act 2009 (“the Act”) provides protection for workers that have been unfairly dismissed.
Pursuant to Section 385 of the Act the Fair Work Commission must be satisfied that the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and that it is not a case of genuine redundancy.
The criteria which the Commission must take into account when considering whether a dismissal was harsh, unjust or unreasonable is provided in Section 387 of the Act. It can be found here.
Whilst an employer may have a valid reason for terminating an employee the Commission may still order compensation to a dismissed employee if it is satisfied that there has been a lack of procedural fairness in the processes involved in effecting the termination.
The above is illustrated in the recent case of Szentpaly v Basin Sands Logistics Pty Ltd (U2013/6871).
In that case Mr Szentpaly was employed by Basin Sands Logistics Pty Ltd (“Basin Sands”) where he had worked for almost six and a half years in various roles. For the last three years he was primarily employed driving a loader on a mine site. He was involved in carting loads to various stockpiles at the Ginko and Snapper mine sites in New South Wales. After carting loads he found that the hydraulic ride control on the loader was not operating correctly, causing the bucket to drop without warning. He decided to turn the ride control off which, in turn, made the ride very bumpy. After a period of operation he decided the loader was unsafe and in accordance with appropriate safety provision stopped work and parked the loader. He filled out a pre-start book, noting the problems he experienced, and then returned to the crib room at the mine site and remained there for the remainder of his shift. He did not inform his supervisor about the problems but had mentioned them to another worker by way of two way radio from the loader. Just prior to commencing his next shift he was spoken to by a manager. He advised the manager about the problems that he had encountered with the loader.
He was questioned as to why he had not told the mechanic who was working in the workshop in the mine site. He then commenced his next shift and because of the same ongoing problems he again parked the loader, stopped work, and headed back to the camp. He then telephoned the shift supervisor and told him that he was upset and needed to return home. About three days later two representatives from Basin Sands attended his home and handed to him a letter indicating that his employment was terminated. It was stipulated the decision was based on “recent review of workplace performance”.
Commissioner Gregory considered the circumstances of the matter giving consideration to the criteria within Section 387 of the Act. The Commissioner held that Mr Szentpaly was unfairly dismissed.
He reasoned “Before such action (termination of an employee’s employment) is taken the current legislative framework expects an employee will be provided with the opportunity to respond to the reasons for that proposed decision. The Act also anticipates that in any such discussion an employee will be assisted through those processes by having the opportunity to have a support person if he/she wishes … However, Mr Szentpaly was not provided with those opportunities. I am accordingly satisfied, given the considerations in Section 387, that his termination was unfair.”
Basin Sands was ordered to pay compensation in the sum of $7,769.41, representing his economic loss in the period following the dismissal until he found alternative work.
An employer need not only have valid reason for the termination of a worker’s employment but also have afforded the employee procedural fairness in relation to the termination. The Court accepts that employment is a significant issue at any time and that before termination can occur it expected that an employee is to be provided with the opportunity to respond to the reasons for that proposed decision.
It would be advisable for an employer who is considering terminating an employee to provide the employee an opportunity to respond to any allegations of poor performance or misconduct, allow the employee to have a support person at any meetings with management and advise the employee of the outcome of their investigation into the matter and providing sufficient details.
If you believe you may have been unfairly dismissed in South Australia, contact one of TGB’s expert employment team.