New business owner dismisses worker via phone call: Is it unfair dismissal?

FWC examines if worker properly notified of termination

New business owner dismisses worker via phone call: Is it unfair dismissal?

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a truck driver who claimed he was unfairly dismissed from his employment.

The worker, who had been employed by the company since November 2020, alleged that he was terminated without a valid reason on July 15, 2023, following the sale of the business to a new owner.

In this case, the FWC had to determine whether the worker's dismissal was harsh, unjust, or unreasonable.

Background of the case

The worker was employed as a full-time truck driver from November 1, 2020, until his dismissal on July 15, 2023.

The dismissal occurred after the employer's business was sold to a new owner on June 24, 2023. The employer contended that the new owner chose not to employ the worker upon purchasing the business.

The worker filed an application with the FWC on August 5, 2023, seeking a remedy for unfair dismissal. The employer initially objected to the application, arguing that the worker was not dismissed or, alternatively, that it was not the employer at the time of dismissal.

Employer cites work performance issues

During the hearing, the employer submitted emails and phone messages dating back to November 10, 2020, which allegedly demonstrated issues with the worker's conduct and work performance.

However, the FWC noted that "there is a paucity of evidence to support the assertions made by the [employer]" and the emails "largely amount to hearsay."

The FWC said that "complaints of this nature need to be handled in a timely and transparent manner" and that the employer appeared to have realized its problem only after the dismissal.

Lack of proper dismissal procedures

The worker also argued that the employer had failed to afford him procedural fairness in the dismissal process. The FWC's decision noted that it was uncontested that the worker was notified of his termination during a phone call on July 15, 2023, in which he was advised that the new owner had chosen not to offer him a job.

However, the worker submitted that he was not given any other explanation for his dismissal at the time and was not given an opportunity to respond to any reasons related to his capacity or conduct.

The FWC highlighted the significance of following proper dismissal procedures. It said that employers must have a valid reason for terminating an employee's employment and must notify the employee of that reason.

Additionally, employees should be given an opportunity to respond to any reasons related to their capacity or conduct.

Was it unfair dismissal?

As the FWC said: "Proper consideration of s.387(b) requires a finding to be made as to whether the applicant 'was notified of that reason'. Contextually, the reference to 'that reason' is the valid reason found to exist under s.387(a)."

As stated in the decision:

"[While] it was probable the [employer] had issues with respect to the [worker’s] conduct and work performance during the years he was employed, they [did not] provide a valid reason at the time of the dismissal. Indeed, it is uncontested that these issues were not raised with the [worker] at the time of dismissal at all."

Thus, the FWC found that there was no valid reason for the worker's termination, and this pointed "strongly to the dismissal being unfair." Ultimately, after considering all the factors, it concluded that the worker was unfairly dismissed. It then ordered the employer to pay compensation.

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