It’s all in the timing for a valid dismissal

It’s all in the timing for a valid dismissal

Shop Talk
Pictured is a man in a white button up shirt and dark trousers. He's carrying a box full of notebooks, a calculator and pens.

A recent decision of the Fair Work Commission has assessed how long a valid reason remains able to be used to justify a valid dismissal. The tribunal has overlooked serious procedural deficiencies to support a landscaping business’s summary dismissal of a gardener almost two months after he called a colleague a “fat exploiter of foreigners”.

The gardener gave evidence that the employer had long been trying to force him to resign by rostering him on the hardest jobs and allocating him poor equipment. The employer said the dismissal for harassing and bullying behaviour followed a six-week period in which it received numerous complaints from co-workers about the gardener’s aggressive and erratic conduct.

The first incident in mid-December 2023 involved the gardener accusing a colleague of being a “liar” in a dispute about a lawnmower, before calling him a “fat exploiter of foreigners” and saying “I fucking dare you” to tell the managing director.

The Commission also heard evidence from the employer’s managing director that the gardener had sent a “bizarre” message to a co-worker with a picture of a plane and “text stating that he was one of Australia’s wealthiest men and was flying to his billion-dollar resort in Port Douglas”.

By way of explanation the gardener told the deputy president that the co-worker “suffered from ‘imposter syndrome‘ and that he liked to appear successful and wealthy”, and that his text “was designed to show him he was aware of his ‘manipulations‘”.

The gardener shortly afterwards stood over the same co-worker while he was filling fuel cans and aggressively said that there were “narcissists” in the workplace, “including one who was. . . right in front of him”.

The gardener was dismissed two days after telling the managing director on February 7, 2024 that he needed time off for his mental health.

Accepting that the alleged incidents happened, the Commission said of the first one that not only was it “entirely unacceptable for a person to ‘fat shame‘ a co-worker, but the gardener had no justification to call the co-worker a liar or swear at him “in a threatening way”.

“This aggressive outburst was clearly a valid reason for dismissal… It constituted not only misconduct but serious misconduct that warranted summary dismissal” the Commission said.

The Commission noted that the employer did not, however, dismiss the gardener in response to the incident.

“It was only later, after other employees had also complained about [his] conduct, that [the managing director] made the decision to dismiss him, because of the cumulative effect of his behaviour.”

The Commission commented that the time lag did not mean the mid-December 2023 incident was not a valid reason for dismissal in its own right.

Section 387(a) requires the Commission to consider whether there was a valid reason for dismissal, not whether the reason relied on by the employer was a valid reason…the Commission must decide for itself whether there were circumstances that constituted a valid reason to terminate the employment…My conclusion in this case is that [the gardener’s] treatment of [the co-worker] was such a reason. 

“Eventually a valid reason will lose its window of ‘currency’, but it would be wrong to punish leniency, and to encourage hasty dismissals, by adopting too narrow an approach to this window….(i)n the present case, the window remained open.”

The Commission said that “one factor” in its conclusion was that the mid-December incident was the first of “several” involving inappropriate conduct towards co-workers.

I agree with [the gardener] that the company’s claims that many employees had made complaints against him lack any detail and are not substantiated, but some are, including [his] text to [the co-worker] in December 2023, which I find was sarcastic and belittling, and also the interaction between [the gardener] and [the same co-worker] in early February 2024 when [the gardener] called [the co-worker] a narcissist, which I find was offensive and abusive.

These matters are not of the order of seriousness of the conduct that occurred on 19 December 2023, but they nevertheless constituted inappropriate conduct that was contrary to the company’s policies.

Based on the evidence of the two former co-workers, the Commission said that the managing director’s concern that the gardener’s conduct was adversely affecting the welfare of other employees “was well founded and that this too constituted a valid reason for dismissal”.

He nevertheless accepted that the managing director’s failure to notify the gardener of the reasons for his dismissal or afford him an opportunity to respond were significant matters that weigh in favour of a conclusion that the dismissal was unfair.

Lessons for employers
Don’t delay too long in raising issues with an employee. At some stage they will become stale and unusable. In other words, it will be unfair to raise issues given a passage of time beyond its seriousness. The more serious, the more important to deal with it quickly. If a matter is not as serious there is a delay in dealing with it, the more likely the Commission will be to say that the process was unfair, and any dismissal harsh, unjust or unreasonable.


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