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By Mike Toten Freelance Writer
After an employee insisted on his “legal right to be at work” after being summarily dismissed, The Fair Work Commission (FWC) found that, although dismissal for misconduct was justified, summary dismissal was not justified in those circumstances. It ordered the employer to pay the employee for the notice period that it should have provided instead.
Facts of case
The employee had 17 years’ service and a history of previous warnings with the employer. In recent times, he had raised several grievances with the employer, which he claimed were ignored. After he then lodged a general protections claim with the FWC, the parties negotiated a settlement that included the employee submitting his resignation.
However, after initially leaving, the employer later sent an email stating that he did not agree with the settlement, would not sign the deed of release, and would return to the office the following Monday.
He did so unannounced. When told to leave, he initially refused, but then did so after consulting his lawyer. He then claimed he was leaving only due to feeling unwell. The employer followed up with a letter stating that refusal to follow a lawful direction to leave the workplace could result in dismissal, and tried to arrange a meeting between the parties. However, the employee sent an email just before the scheduled time claiming he could not attend. He did not provide a reason (claiming he missed a bus) until the dispute reached hearing stage.
The employee continued to claim that he had a legal right to be at work, citing sec 340 of the Fair Work Act 2009 (which defines workplace rights). The employer countered that failure to follow its directions amounted to serious misconduct.
Decision
Noting a history of mistrust between the parties, the FWC found however that summary dismissal when the employee returned to work was unfair. His history of not following directives by the employer provided a valid reason for dismissal for misconduct, but not a valid reason for summary dismissal in this case. Instead, it ordered payment of five weeks’ pay in lieu of notice that the employee would otherwise have been entitled to.
The FWC noted that the employee had not been abusive or threatening when told to leave work, and eventually complied. He believed that refusing to sign the deed of release meant that it was not binding on him. However, the FWC also commented that he was untruthful at times.
What this means for employers
Summary dismissal is an option that must be considered carefully, and only used when there is no doubt at all that an employee should be dismissed. It is justified when, for example, there is an obvious threat to the safety of the business and/or its other staff if the employee remains on-site. But in most cases, it is safer to dismiss the employee either with the notice period required by law, or with pay in lieu of notice.
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