Case discusses Fair Work’s requirement of a 'substantiated' claim
A recent Fair Work decision recently dealt with the case of a worker who argued that he was unfairly dismissed because the employer did not notify him of the employer’s intention to terminate his employment.
One of the issues of the case is the “anonymous complaint” that the employer received which launched an investigation. How should HR deal with submissions of the same nature?
The worker worked as a factory foreman. In March 2021, the employer notified the worker that it had received an anonymous complaint against him which would be investigated.
Suddenly, the worker became “unwell” and went on leave from 22 April 2021, which was the last day he attended the workplace before his dismissal. Around July, the employer wrote to the worker, advising him of a requirement that he should undertake a “fitness for duties” assessment. The worker’s spouse answered and said that after seeking advice, the worker had been informed that there was no requirement for him to attend a doctor’s appointment made by an employer.
The worker made two compensation claims and subsequently attended an independent medical examination. The employer dismissed him in February this year, saying that the reason for dismissal was his “inability to perform the inherent requirements of his role.”
The FWC’s decision
The FWC noted if the employer investigated the tip it received about the worker’s capacity and performance. The latter found that the anonymous complaint “was not substantiated.”
It also found that the employee’s evidence supported the employer’s argument that he was not able to perform the inherent requirements of his role and was not able to return to work.
It said that the employer had a valid reason for dismissal, noting that its decision was “sound, defensible and well-founded,” however, it said that it was “harsh” because “even though there was a valid reason, the employee should have been notified of the employer’s intention to dismiss him before the decision was made.”
It also said that the employee “should have been provided an opportunity to respond.” Thus, the FWC said he was unfairly dismissed. It ordered the employer to pay him appropriate compensation. The decision was handed down on 16 May.
Takeaways for HR leaders
- Ensure that any complaint received by HR is complete and substantiated;
- Vague and ambiguous feedback should be scrutinised and carefully examined;
- Notify and inform the employee about the nature of the complaint;
- Require an investigation and provide an opportunity for the employee to respond.
