The worker was dismissed in March this year by a specialist tour company who claimed the employee was running her own business when she should have been working for the company.
It was alleged by the employer that the worker informed them that the she wanted to start a new business in January this year.
However, the company claimed her LinkedIn
page suggested that from as early as December 2016 she was the Personal Concierge and Lifestyle Manager of the new business.
Moreover, there was a noticeable change in the employee’s work habits, such as frequently going outside to take private phone calls, according to the company.
The worker denied she was operating the new business while working at the company. She also claimed she registered the business name and acquired a web address as a preliminary measure.
She also argued that she only started devoting most of their energy into the new business from the end of June 2017.
The Fair Work Commission
found that it is not unusual to make a business look older than it is on social media.
“I accept the evidence of (the employee) that as part of marketing herself both on Facebook
and on LinkedIn that she was trying “to make my business look like it has been around longer than it has” and that she “might be stretching the truth a bit” about herself and her business,” said the Commission.
The FWC also found that the conclusions drawn by the employer were not justified as there was nothing to support the allegation the employee was operating their own business to the detriment of the company.
The FWC said there was “no reason advanced” by the company relating to the conduct or capacity of the employee which “could or would or did constitute a valid reason for dismissal”.
Moreover, the employee was only notified of the reason for the dismissal after receiving a text message which read “your services are no longer required”.
Consequently, the employee was not given an opportunity to respond to any reason for dismissal.
In conclusion, the FWC found that the dismissal of the employee was “harsh and unjust and unreasonable”.
“It was harsh because (the employee) had not engaged in the alleged misconduct. It was unjust because (the employee) was denied procedural fairness by (the employer) and was given no opportunity to defend herself. It was unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round,” said the Commission.
So what are the key lessons HR professionals can take away from this case?
Victorian Chamber of Commerce and Industry Chief Executive Mark Stone AM told HRD that a strong evidentiary basis and investigation process is crucial for an employer to satisfy the “believes on reasonable grounds” component for summary dismissal under the Small Business Fair Dismissal Code (“Code”).
“Alternatively, an employer outside the Code must satisfy the Commission that the alleged serious misconduct occurred,” Stone told HRD
“Even with the benefit of a robust investigation process, it is a fundamental part of the unfair dismissal process to give the employee an opportunity to respond before any conclusive decision is made on disciplinary or dismissal action.
“Numerous Commission decisions have concluded dismissal via text message (or other similar means) can offend these principles of natural justice, and employers are well-advised to steer clear except under exceptional circumstances.”
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The recent case of an employee who received a text stating ‘your services are no longer required’ and was later found to be unfairly dismissed has some significant lessons for employers.