By Catherine Ngo Content writer, presenter and podcaster
A former general manager at Safiery Ltd. submitted an unfair dismissal claim after his boss, the company's CEO, terminated his employment on grounds of insubordination.
Background
The matter began in December 2023, when the CEO, Mr L, telephoned the former employee to address his concerns about the former employee's performance and requested that the former employee call him every day.
The following day, the former employee failed to call his manager. On 21 December, Mr L attempted to call the former employee, yet received no answer. Subsequently, the former employee sent Mr L a text message saying he was already on a phone call, to which Mr L replied, "Call when convenient." This phone call on 21 December never occurred, and the former employee failed to call his boss daily after that.
On 6 February, the CEO alerted the former employee that he had failed to call him daily: "Please note I asked you on 20 December to call me every day. I did not receive a call on 21 December nor any day this year."
From 7–18 February, the former employee worked as usual. On 19 February, he presented for work at his normal start time of approximately 6:30 a.m., found he could not log onto his work email, and was notified that his access had been removed.
After notifying the CEO about this, the former employee received a text saying: "Yes, your contract has been terminated effectively immediately. An email has also been sent to you."
The correspondence contained other claims of insubordination and refusal to adhere to managerial directives, citing the failure to partake in the daily phone calls as a prime example, which led to company having no choice but to terminate his contract.
Expectations unclear
The former employee applied an unfair dismissal remedy. Based on the daily phone calls, his evidence was that Mr L never clearly and formally directed the former employee to abide by this directive.
Although he admits that he may have missed his boss's calls on occasions, he stated that he performed his duties to the best of his capabilities and communicated with his manager regularly as necessary.
Throughout his evidence, he maintained that he returned most calls at the earliest opportunity, and the reasoning that Mr L presented did not constitute serious misconduct justifying dismissal.
During the case, the Mr L insisted that he gave the former employee clear instructions to contact him daily, referring to a formal email he sent on 6 February 2024, which told the former employee to ensure that he called him daily.
The failure to follow what Mr L deemed to be clear instructions justified the instant dismissal. As Mr L's evidence shows, failure to call daily was serious misconduct.
Dismissal was unjust and unreasonable
After considering the evidence of both parties, the Commissioner found no valid reason for the dismissal.
"If I had found a valid reason, I would have found the dismissal harsh given [the Applicant's] age and because the employer's concerns with his conduct were not clearly and formally communicated to him or were so serious as to constitute serious misconduct."
"If I had found there was a valid reason, I would also have found that the dismissal was unjust and unreasonable because [the Applicant] was not notified of the reason for dismissal and was not provided with an opportunity to respond prior to the final decision being made," the Commissioner said.
The Commissioner accepted some of the faults that the former employee had throughout his tenure, including the communication breakdowns, which reflected the breakdown in the relationship. However, none of the evidence presented would be considered as insubordination or serious misconduct to warrant termination of employment.
The Decision
As the former employee's annual salary was $100,000, the Commissioner decided he would be awarded compensation of $29,999.99 gross plus superannuation of $3,299.99.
