Employer says worker neglected duties, resulting in $100,000 of lost revenue
A worker recently questioned her dismissal before the Fair Work Commission (FWC) after being surprised that her position was advertised by her employer on Facebook without her knowledge.
The worker, Amber McCormick, was employed to oversee operations at the Kookaburra Holiday Park in Cardwell, North Queensland. According to records, the following events lead to the termination of the employment relationship:
McCormick had a discussion with the employer for an hour and a half, and they agreed that she could send a park map to the local council. The next day, the worker sent an email to the council environment health officer, and within half an hour, the employer called her and verbally abused her.
After, the worker was shocked to find her position advertised on Facebook. The employer said it posted the ad because it expressed concerns about the worker’s unresponsiveness to calls and the park's deteriorating condition.
After a few days, the employer sent an email stating that it was clear McCormick no longer wanted to do the job since she wasn’t answering their calls.
The employer also raised several concerns about McCormick's performance via text message, describing her actions as "serious misconduct or wilful neglect in her employment duties."
Shortly, McCormick responded to the concerns raised in an email, denying many allegations and providing examples of tenant issues that she encountered.
Email signals resignation
After a month of escalating tensions and correspondence between the parties, McCormick sent an email notifying her resignation, intending to resign with a three-month notice period in under her contract. The employer accepted but waived the notice period.
The worker didn’t agree to the waiver, so the parties further talked to reach a potential negotiation. Subsequently, the employer postponed the acceptance of the resignation after finding out new information about the worker’s misconduct.
The employer then issued a termination letter, claiming that the relationship had broken down irreparably due to McCormick's work behaviour, including refusal to work with tenants, not answering calls, and neglecting the park.
The termination was effective immediately, and McCormick was directed to vacate company property and return company equipment.
‘Unreasonable workload environment’
McCormick argued that the end of the employment relationship was not by resignation, and if it was a resignation, then the employer’s course of conduct was such that she was constructively dismissed.
She said that the advertisement of her job by the employer, along with threats and accusations made by the employer and an unreasonable workload created an “intolerable and untenable environment” such that she had “no choice but to resign.”
Meanwhile, the employer said that McCormick wilfully neglected and refused to carry out her duties. The employer said that McCormick was warned several times in relation to these issues and given a number of opportunities to respond but failed.
The employer said McCormick failed to:
- Manage existing tenants;
- Manage or engage backpackers;
- Follow direct managerial instructions and encouraged staff not to respond as well;
- Talk to the owners since the show cause process was started in March;
- Answer customer calls after 6 p.m. or at all after March;
- Reasonably maintain the gardens (Guests reported knee-high grass and unkept and overgrown gardens);
- Palm fronds were piled up to two metres high across three caravan sites;
- Implement any COVID regulations;
- Do daily booking reconciliations;
- Arrange repairs for simple items, like faulty smoke detectors, and instead blocked out these rooms resulting in several weeks of list revenue;
- Reset tripped circuit breakers in the office, resulting in unnecessary electrician callout fees.
The employer said the worker’s neglect resulted in $100,000 of lost revenue as compared to the previous year.
Were there valid reasons to dismiss?
In its decision, the FWC accepted the employer’s argument that “they tried two things: one to try and find a way to get [the worker] to do the things she was refusing to do, and second as a backup, to get an advertisement out to try and find an alternative manager if the worst comes to the worst, which subsequently happened.”
It found that the worker was dismissed because “the employer believed, on reasonable grounds, that the [worker] had engaged in serious misconduct in the form of theft and serious breaches of occupational health and safety procedures.”
The FWC said the employer “had a reasonable basis to believe that the other conduct was wilful and deliberate and inconsistent with the continuation of the employment contract.”
It added that the worker’s performance “was also causing a serious and imminent risk to the reputation, viability or profitability of the business.” Thus, it said that the employer did not unfairly dismiss the worker. It likewise rejected the latter’s application against the employer.
