Sometimes, the bright enthusiasm an employee had for their role at the beginning of their employment relationship all but disappears, and it becomes apparent that, when it comes to work, they have lost that loving feeling. Unsurprisingly, this can have a ripple effect on employee morale and relations as a whole, and is likely to result in a loss of confidence on the part of the employer.

But if your employee is showing such signs of dissatisfaction in their role or impacting negatively on the workplace as a whole with their bad attitude, take a second to understand your legal obligations so as to ensure the dismissal is lawful.

Unfair Dismissal and the Fair Work Commission

The Fair Work Commission’s (FWC) recent unfair dismissal application serves as a timely reminder of an employer’s obligations in this space, as well as their potential liability if they pull the plug on the working relationship too soon. Here, the employee in question had a solid, long-standing employment record with her employer. She was employed by a school in dual roles as a teacher and administrator. After the applicant had raised some issues regarding her excessive workload (culminating in a diagnosis of depression and anxiety), the respondent school reduced her workload by removing the administrative function, and, accordingly, paid her less.

The school alleged that the circumstances leading to, as well as the decision itself, resulted in a period of unrest whereby the applicant was said to do the following:

  • Act in an uncooperative and disrespectful manner;
  • Made inappropriate Facebook posts;
  • Discussed her industrial issues among other members of the school staff; and
  • Refused to meet with the principal without a third party present.

Ultimately, the school ‘had enough; and dismissed her employment, claiming it had lost ‘trust and confidence’ in her.

The applicant filed and lodged an unfair dismissal application with the FWC and was ultimately, successful. The FWC determined the dismissal was harsh, unjust and/or unfair on the basis the school failed to:

  • Substantiate a number of claims;
  • Properly consider the employees mental health; and
  • Intervene in the issues raised by other staff members, notwithstanding it had in place a grievance and dispute resolution policy.

Key Takeaways

The lesson is clear, even if your desire to terminate an employee stems from a notable change in their attitude to the role or disruption to the harmony of the workplace, you still need to follow the law. If you’re in such a position, seeking advice from an employment lawyer at the outset will provide you with clarity on your obligations in this particular circumstance. If you do insist on severing ties with your employee, it’s important that you do so in a way that’s legally permissible. Questions? Get in touch on 1300 544 755.

Emma Jervis

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