Issue 39 2014 Unfair dismissal: lessons from recent cases Some recent unfair dismissal decisions highlight important lessons for employers in managing investigations and dismissals. What makes a reason ‘valid’? In cases where it’s ‘his word against hers’, it is generally open to employers to prefer the evidence of one witness over another in determining on the balance of probabilities that a certain event did or did not happen. However, that conclusion must be “sound, defensible or well founded”. 1 In Farmer v Yarra Trams, 2 an employee tram driver was allegedly seen using his mobile phone whilst operating a tram which, if true, amounted to serious misconduct. The Fair Work Commission (“FWC”) found that there was no valid reason for the dismissal because based on the evidence available; it was not possible to conclude on the balance of probabilities that the employee was actually using his mobile phone at the time. There was some variation in the evidence given by the witnesses. The FWC stated that an arm’s-length investigation and close questioning of the witnesses in an objective manner would have revealed that, on the balance of probabilities, the device the employee was seen to be using may have been something other than a mobile phone. The reason for dismissal could not be characterised as sound, defensible or well founded, and therefore not valid, because it was based on “inexact proofs, indefinite testimony, or indirect inferences”. 3 Directions must be lawful and reasonable Where the reason for a dismissal is a failure to comply with a reasonable and lawful direction, employers should ensure that the direction is in fact a lawful and reasonable one. In Sheldrick v Hazeldene’s Chicken Farm, 4 the employer ‘directed’ the employee to agree to a variation to his contract of employment to undertake on-call duties. The employer claimed that the employee’s refusal to do so amounted to a refusal to follow a lawful direction. The FWC found that the employee could not be compelled to participate in the on-call arrangements - or vary his contract to that effect - simply because other employees had agreed to those terms. It found that the direction to agree to those terms was not a lawful or even reasonable direction and therefore there was no valid reason for dismissal. Valid reason but unfair overall When serious misconduct is suspected, employers should ensure that their actions during the investigation and leading up to dismissal are consistent with that view. In Camilleri v IBM, 5 a manager had falsely claimed travel expenses on 141 occasions over 12 months. The FWC found that although there was a valid reason for dismissal, it was nevertheless unjust on a number of grounds, including long delays in the investigation. The FWC ordered reinstatement, rejecting the company’s argument that it has lost trust in the manager. The employer had required him to keep working for 8 months while it investigated the suspected – and allegedly serious – misconduct and even for a period after it had determined that he should be dismissed. Require further information/assistance? EMSpro is an easy-to-use solution designed to protect employers from unfair dismissal claims. Find out more with this short video. Please note that while this note intends to highlight key outcomes of the above cases, it does not represent a comprehensive case summary of each decision. If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices. 1 Mr Nicolas Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539 (22 September 2014) at 36, quoting Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 p 373. 2 Mr Nicolas Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539 (22 September 2014). 3 Ibid, 37. 4 Bradley Sheldrick v Hazeldene’s Chicken Farm Pty Ltd [2014] FWC 5820 (25 August 2014). 5 Lance Camilleri v IBM Australia Limited [2014] FWC 5894 (10 September 2014). Contact Us | Adelaide Office 08 8203 1700 | Melbourne Office 03 5428 5424 | Email [email protected] EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
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