Valid Reason – But “Ambush” and “Predetermination” deemed Dismissal Unfair

The Fair Work Commission (FWC) has recently ruled in an unfair dismissal matter that an employee’s lack of formal qualifications provided a valid reason for dismissal. However, the FWC ruled that the dismissal was unfair because she was called into a ‘disciplinary meeting’ at short notice and dismissed without being given a proper opportunity to respond. The FWC found that the way the employer expedited the dismissal process severely limited the employee’s ability to respond to allegations of misconduct and made the process procedurally unfair.

The employee was a disability care provider, and the parties disputed whether she had been given permission to tube-feed clients despite lacking the required formal qualification. There was confusion over whether the employee was allowed to perform the tube feeding procedure, and evidence that the employer had not provided the opportunity for her to gain the necessary qualification.  The employer already knew at the time of dismissal that she did not have the necessary formal qualifications.

Deputy President Anderson stated that the employee was “provided an opportunity (to respond and gain the qualifications) in name only; one in which she was being summonsed to participate in an ambush of her employment if she didn’t do what the employer already knew she couldn’t do – provide a certificate of competency.”

The employee was awarded compensation of $6385, including superannuation. The full text of the case can be found at https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc704.htm

Lessons learned: Even though there was a valid reason for dismissal, the dismissal was unfair for two reasons:

  • The employer had predetermined the outcome of the disciplinary process without first hearing from the employee, which made the dismissal unfair.
  • The instructions to the employee were not clear-cut, and it allowed an unclear situation to continue for too long.

By Greg Arnold

Director and Principal Consultant

Effective Workplace Solutions

employment law, unfairdismissal

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