The Fair Work Commission (FWC) recently dismissed an unfair dismissal claim brought by an ex-employee of a small business that sells bathroom supplies and fittings*. In rejecting the application for unfair dismissal, the Commissioner observed:

“It appeared much of the issue for Mr Khan was the manner in which the dismissal was effected...”

and

“This case involves not only a termination by email, but also a termination where the real reason for termination was not communicated for the reasons explained above. The course adopted by [the employer] in that regard has clearly made the whole situation worse and was clearly a misjudgement (sic). If an employee is to be dismissed for serious misconduct it should be done in person, and the reasons clearly explained in the absence of some extenuating circumstances to prevent that from happening.”

 

Summary of the Matter

Mr Khan had worked for the employer on a casual basis for approximately 5.5 years.

The employer operated two stores. A few years earlier Mr Khan had requested that he only work at one of the two stores, which resulted in the employer engaging another casual employee to work at the other store.

The day before Mr Khan was dismissed, a fellow employee telephoned their manager and complained that Mr Khan had assaulted him. The manager instructed him to report the incident in writing, which he did the following day.

The employer then sent an email to Mr Khan stating:

“Due to restructuring of our Sales personal (sic) in both our Varsity and Tweed Warehouses, we unfortunately have to advise you that your services are no longer required effective immediately.

We thank your (sic) for your efforts in the past and wish you well in the future.”

Mr Khan brought an application for unfair dismissal. The Small Business Fair Dismissal Code applied because the employer was a small business.

The manager’s evidence at the hearing was that the real reason for dismissal was his belief that Mr Khan had pushed another employee, but the reason was withheld because he did not want to make it difficult for Mr Khan to find future employment.

There was also evidence at the hearing of other concerns about Mr Khan’s conduct (which were disputed by Mr Khan) including:

- sleeping at work;

- using work equipment for a private business; and

- changing company sales records to show himself as he salesperson who made the sale.

Mr Khan said that the dismissal was unprofessional and if he was such a bad employee the employer should have told him.

He said it would have been enough had the employer told him he would be dismissed because of several incidents about which they were not happy.

The Commissioner summarised the issues for decision arising from the Code as:

1. Whether the employer believed on reasonable grounds that Mr Khan’s conduct was sufficiently serious to justify immediate dismissal; and

2. Whether the employer could produce evidence of compliance with the Code.

The Commissioner found for the employer on both grounds and dismissed the application for unfair dismissal.

The Commissioner also cautioned that:

- The employer’s handling of the dismissal had made the whole situation worse; and

- Unless extenuating circumstances apply, a dismissal for serious misconduct should be handled in person and the reasons clearly explained.

 

Implications

The case is a reminder to employers of the importance of handling terminations carefully by complying with the strict requirements of the Small Business Fair Dismissal Code (if it applies) or other requirements of the Fair Work Act. The case was decided under the Code because the employer was a small business. The result may not have been the same for a larger business.

The case is also a reminder that if an employee is to be dismissed for serious misconduct, the reasons should be communicated in person and clearly explained.

If you require assistance with any employment matters, please contact one of our employment lawyers here

*Umer Khan v Who Bathroom Warehouse Pty Ltd [2018] FWC 3440 (12 June 2018)