By Mike Toten Freelance Writer
The Fair Work Commission has ordered a hotel to pay compensation to a chef after it dismissed him while he was still serving out his notice period after resigning. The FWC found that the hotel did not have a valid reason to dismiss him.
Facts of case
The chef had given one month’s notice of his resignation. But four days later he was dismissed with one week’s pay. The employer claimed that he had stolen employer property, had made threats against the business and wasn’t performing his job satisfactorily.
The employee denied the allegations, claiming that the only items he took from the workplace were his own possessions. The employer then claimed it had not dismissed him, only shortened his notice period. The FWC countered that only an employee can reduce a notice period, therefore the hotel had dismissed him. It had failed to comply with the Small Business Fair Dismissal Code.
The employer did not provide sufficient evidence to back up the allegations against the employee, and did not investigate further to be able to refute his denials. Management had raised some concerns with the employee, but never indicated that his employment could be in jeopardy.
Decision
The FWC awarded the employee compensation of $1,302 plus compensation, which reflected earnings had he worked out the full notice period, less income from new employment gained since dismissal.
What this means for employers
If an employee voluntarily resigns and the employer wishes him/her to leave before the notice period ends, the employer should pay the equivalent pay in lieu that covers the full remaining notice period. This case ended up as an unfair dismissal because the employer failed to pay the full amount and appeared to “manufacture” reasons relating to misconduct, and then failed to follow a fair process before dismissing the employee.
Read the judgment
Mr Christopher Cassar v Kalimna Hotel Pty Ltd - [2024] FWC 3005 | Fair Work Commission
