Employer argues worker's commitment to business was 'lacking'
A worker recently filed a dismissal claim before the Fair Work Commission (FWC), alleging that he was unfairly dismissed without warning. The worker, among other reasons, said he was fired because he once intended to resign for his travel plans.
The worker, Tomaso Edwards Moro, filed an application before the FWC, seeking an unfair dismissal remedy following his termination by Insider Au Pty Ltd.
The employer is an e-commerce support and customer service solution provider, and the employee worked in full-time permanent employment as a digital growth associate.
On August 31, 2023, a representative of the employer, initiated a telephone discussion with the worker, suggesting a mutual parting of ways.
The representative requested the worker to submit a resignation letter indicating September 1, 2023, as his last day. However, the worker declined to resign.
There are indications that the dismissal took effect on September 1, 2023, marked by the worker losing access to the employer's IT systems and receiving advice about receiving two weeks' pay in lieu of notice.
No prior warnings about conduct
The worker said that he was a high-performing employee with awards to support his claim, argued that he received no prior warnings regarding conduct or performance-related issues leading up to his dismissal.
He said the dismissal lacked a valid reason and violated procedural fairness due to the absence of prior warnings, notice of the discussion's purpose, and the opportunity to have a support person present.
The worker further alleged that the employer's failure to provide proper entitlements regarding notice worsened the situation. The employer paid two weeks' pay in lieu of notice, contrary to the employment contract's identification of an eight-week notice period or equivalent payment.
On the other hand, the employer raised concerns about performance, conduct, and attendance-related issues. Specifically, the employer highlighted the worker's absence from work on August 30, 2023, without prior notice and a dismissive response to addressing the issue.
According to records, the employer outlined challenges such as frequent unexplained absences, poor collaboration, challenging behaviour, and dishonesty. Termination discussions ensued, during which it became evident to the employer that the worker's commitment to the role had diminished. The employer claimed to have offered the option to resign, considering the worker's earlier desire to do so because of his intention to travel.
Worker’s intention to travel
The FWC found that the worker advised the employer “that he was intending to resign to travel and/or intending to leave the employment as he was planning to travel at some point.” However, the worker emphasised that he did not issue any formal notice of resignation.
Later, the management had a meeting where they decided to terminate the worker’s employment after he worked from home. The representative said that “after consulting with our HR team, we reached a mutual understanding that the [worker’s] commitment to their role was lacking, leading to the decision to proceed with termination.”
HRD previously reported about a dismissal claim from a worker who said she was fired after the period when she pursued a passion project overseas.
In another case, a manager said he was forced to resign because his employer failed to accommodate his request to work remotely.
Was there unfair dismissal?
The FWC said that the worker “was not given an opportunity to respond to any reason related to his capacity or conduct.” It also said that performance and attendance issues were not properly raised to him, especially when it came to his desire to resign.
“The matter of the termination of the employment as the (only) outcome had been pre-determined as between the [employer’s] HR team and [the representative], apparently on the basis of their ‘mutual understanding’ that the [worker’s] commitment to his role was (allegedly) lacking,” the FWC added.
"Absent a valid reason for the dismissal and given that the dismissal was bereft of procedural fairness," the FWC said that “the dismissal was harsh, unjust and unreasonable." It then ordered the employer to pay him compensation.
