Employee compensated for unfair dismissal due to Employer’s ‘uncertain’ Working from Home procedures
Introduction
In light of the global pandemic and more employers adapting to a work from home approach, the need for clear policies, reporting lines and communication has never been so critical. Recent Fair Work Commission decision, discusses the harsh, unjust and unreasonable dismissal wherein the Applicant was awarded compensation due to a lack of transparency and uncertainty from the Respondent.
Background
On 6 March 2022, the Applicant made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (“FW Act”), alleging that he had been unfairly dismissed as an estimator from the Respondent.
On 21 February 2022, the Applicant sent message to a group chat including the Respondent’s personnel. The HR manager took issue with this and instructed the Applicant to come into the office and attend a meeting that afternoon (“the Meeting”). During the Meeting, the Applicant was provided with a counselling letter detailing areas for improvement and proposing an additional meeting to review the Applicant’s progress.
On 21 February 2022, the Applicant sent message to a group chat including the Respondent’s personnel. The HR manager took issue with this and instructed the Applicant to come into the office and attend a meeting that afternoon (“the Meeting”). During the Meeting, the Applicant was provided with a counselling letter detailing areas for improvement and proposing an additional meeting to review the Applicant’s progress.
Following the Meeting, the Applicant attempted to contact the Director again. The HR manager emailed the Applicant stating that he had “once again not followed protocol” by doing this. The Applicant’s employment was then terminated on 22 February 2022, with the Applicant being paid one week’s wages in lieu of notice.
The Applicant submitted that there was no valid reason for the dismissal related to his capacity or conduct because “no misconduct or serious misconduct took place. The Respondent, however, submitted that there was a valid reason for the dismissal related to the misconduct including poor performance and working from home without requesting permission.
Decision
The Commissioner reasoned that there was “a deficit in clear communication” to the Applicant regarding expectations about working from home, the protocols to be followed and channels of communication. As a result, it is understandable for the Applicant to have become frustrated and upset as a result of being counselled and given a warning about matters that would likely have come as a surprise to him during the Meeting.
Ultimately, the Commissioner indicated that he was satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act and that an order for compensation in the amount of $7,788.48 was appropriate, having regard to all the circumstances of the case.
Takeaway
This case highlights the need for clear communication, appropriate work-from-home (WFH) policies and reporting lines in the workplace. In this instance it was found that there was no evidence that the Applicant was given “appropriate” information regarding the required processes and was unfairly dismissed as a result.
If you have any questions about managing employee complaints, employee performance or dealing with adverse action cases more generally, please do not hesitate to contact Nick Stevens, Peter Hindeleh, Daphne Klianis or Josh Hoggett.
