Fair Work sides with employee despite discriminatory conduct

Employee found out about dismissal via forwarded e-mail

Fair Work sides with employee despite discriminatory conduct

The Fair Work Commission (FWC) has recently dealt with an unfair dismissal claim where an employee was awarded compensation despite his alleged discriminatory conduct. The issue revolved around the employer’s failure to allow a proper response against the said allegations.

The employee found out about his termination via a forwarded e-mail from one of the managers. The case highlights the importance of “procedural fairness” where an employer might believe a valid reason for termination of employment exists, but nevertheless, failure to comply with the required procedure would render the dismissal as unfair.

The employer is a global contract research organisation providing outsourced services to pharmaceutical and biotechnology clients, mainly in running clinical trials. The employee was a senior import/export coordinator, and his primary function was to ensure that import and export activities associated with pharmaceutical products were completed under the employer’s requirements. His employment also required him to conduct job interviews.

Issues arose because of a particular round of interviews that he conducted with female candidates. As part of the feedback that the employee received as the interviewer, one of the female candidates wrote:

“There is one thing that I would like to bring to your attention that holds me back from accepting the offer. During the interview, I was asked questions about my marital status and plans for having kids. I didn’t know how to respond to those questions back then, and I didn’t have the gut to say it straight out, but I don’t appreciate being asked these questions.”

The employee was also warned for other misconduct during the same period, including “an attempt to undermine a female manager’s decision, speaking disrespectfully to his female line manager, and refusal to mentor a female job candidate.”

The employer then issued a warning letter and Performance Improvement Plan (PIP) before the employee went on his planned annual leave. The FWC noted that the letter was his first notice about the said allegations.

When the employee returned to work, he met with the HR manager and said he did not wish to participate in the PIP. After a few days, the employer told the managers through e-mail that the employee “would be finishing up with the company within days.”

The employee was only made aware of his termination when one of the managers forwarded him the said e-mail, “wishing him well in the future.” The HR manager then told the employee that he could participate in the PIP after the latter sought clarification. The employee again refused. Consequently, the employer sent a termination letter after three days.

Arguing unfair dismissal, the employee filed a claim in the Fair Work Commission.

The decision

The FWC noted that the employee’s misconduct and persistent refusal to participate in the PIP were valid reasons for dismissal. However, it found that the dismissal was unfair because he was not given a proper opportunity to respond to the allegations against him.

The FWC further pointed out that the warning letter that the employer sent out did not clearly state the risk of dismissal. “These factors weigh in favour of the employee,” the FWC said in its decision.

Thus, despite the allegations of discrimination against him, the FWC ruled that the employee was unfairly dismissed and awarded the proper compensation.

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