Casual Employee Wins Unfair Dismissal Case Following Lack Of Correct Procedure By Employer

In the case of SB v FC Pty Ltd, SB (the applicant) had her employment terminated by FC Pty Ltd (the respondent) after 16 months of regular casual employment.

The applicant claimed that the termination was unfair because there was no valid reason, she was not informed of the reasons for her dismissal, and she was not given an opportunity to respond or have a support person involved in any part of the events that led to her dismissal. The applicant also claimed that her supervisor bullied her.

The respondent claimed that there were performance issues with the applicant and this was the reason her employment was terminated. The respondent also submitted that the applicant was given ample opportunity, during the telephone conversation [on the day of the dismissal], to demonstrate that her work ethic would improve…

The applicant who was 19 years old at the time, worked as a food and beverage attendant across a number of stores operated by the respondent, and she worked an average of 35 hours per week and regularly worked 40 hours per week in the weeks prior to dismissal.

The Commissioner found that there were some exchanges between a supervisor and the applicant that were not particularly professional or appropriate in the circumstances, including that the supervisor may have called the applicant a ‘Bogan’ in front of other staff.

It was discovered that the respondent generally considered the applicant’s performance to have been good up until late 2009 - early 2010. After observations of the applicant’s performance, a discussion was held with her two days prior to her termination. It was stated that whilst the applicant did not particularly agree she did acknowledge the perspective of the respondent, and she indicated that she would try her best. The applicant also stated that she liked her job.

As the applicant was distressed about the meeting, she telephoned her mother and unbeknownst to the applicant, her mother attended one of the other stores and told the store manager that her daughter was being ‘bullied’ and the mother also made a number of allegations against her daughter’s supervisor.

After hearing about the mother’s attendance, the Managing Director organised for the area manager to join him to meet with the applicant. When informed of her mother’s actions, the applicant showed her annoyance. The Managing Director raised the issue of work performance again, and the applicant indicated that she was working hard, but the area manager did not accept the response. The Managing Director also raised the issue of bullying of the applicant by her supervisor to which the applicant responded that her supervisor had threatened to kill her, had called her names and was always picking on her.

The applicant was visibly upset and she was sent home to consider whether she wanted to continue working.

The respondent spoke to the applicant’s supervisor regarding the bullying complaints and determined that the supervisor had not bullied the applicant.

The supervisor apologised to the applicant the following day, and whilst the applicant acknowledged the apology she was clearly upset and agreed to go home. The applicant spoke to an officer from her union, and sent a text to the respondent stating that she was not coming in to work that day and that she would be seeing a doctor. The day after, the applicant sent another text stating that her doctor had put her off work on stress.

The Managing Director then contacted the applicant by telephone to ask how she was feeling, and when informed that she couldn’t face coming into work, the Managing Director said that he felt they had not done anything wrong and stated that if she wasn’t happy at work because of personal issues with some staff then we will have to go our separate ways. The applicant was not given written confirmation of dismissal and was not paid in lieu of notice.

The Commissioner considered all of the evidence and the relevant parts of the Act, and found that the respondent’s investigation into bullying had been cursory. The Commissioner also found that although there were performance concerns, they were not sufficient to justify dismissal without warnings and as such there was no valid reason for termination. It was also found that the applicant was not given an opportunity to improve performance; and she was not notified of the reason for dismissal. The applicant’s relatively young age was also considered.

It was found that the termination was harsh, unjust and unreasonable in all of the circumstances.

Reinstatement was not considered appropriate so compensation was ordered. The amount of 5 weeks compensation was considered appropriate given the length of the applicant’s employment and a number of other factors.