‘Mildly Insubordinate’ Employee Terminated During 6 Month Trial Period Wins Unfair Dismissal Case

Mr Davidson (the Applicant) was employed by Griffiths Muir’s Pty Ltd t/as The Good Guys (the Respondent) as a part-time administration assistant/cashier. The applicant was informed of his termination, and asked to work out his notice period. An unfair dismissal application was placed with Fair Work Australia (Mr Bradley Donald Davidson v Griffiths Muir’s Pty Ltd).

The Respondent initially thought that the Applicant couldn’t make an unfair dismissal claim because he had been employed for less than 6 months. However it was determined that although he was informed of the termination during the 6 month period, because the Applicant was required to work out his notice period, this brought the length of his employment to in excess of 6 months.

The Respondent claimed that the Applicant was regularly late for his shifts, and that he was warned that his employment may be terminated if he continued to arrive late. Further submissions made by the Respondent included that the applicant was informed that it ‘…wasn’t good enough’ to be constantly running late. The Respondent claims that the Applicant said it was because he takes his child to school, to which he was told he would have to sort it out. The Applicant claimed that this discussion never occurred.

In relation to the Applicant’s lateness 16 occasions were electronically recorded as being late - however it was noted that all of these times were before 9.00am - the Applicant’s starting time. The Respondent stated that the Applicant was required to be ready to start by 9.00am when the doors opened and as a result the employee (and other employees) were paid for 30 minutes of their lunch break.

The Respondent also claimed that the applicant refused to accept reasonable direction, and that the Applicant was ‘uncooperative‘.

The Respondent stated that a number of warnings were given to the Applicant; that he was given opportunities to improve his performance; and that he was notified of the reasons for termination. The Applicant denied that there had been any disciplinary action and that he had been given any warnings, and that at the termination meeting he was informed the performance of his duties was satisfactory.

Senior Deputy President (SDP) Richards considered all of the information provided - including witness statements and the relevant sections of the Act. It was determined that there was no valid reason for termination; and even though the Applicant acted in a less than fully cooperative manner [in relation to one particular incident] that incident would not warrant the termination of his employment. SDP Richards considered that the Applicant’s behaviour did not provide a valid reason for termination.

SDP Richards was not satisfied that the Applicant was notified of the reason for termination, finding that it was likely on the balance of probability that the Applicant was dismissed….on the presumption that he was within the probationary period of employment,…..

In finding that the dismissal was unfair SDP Richards considered that reinstatement was not appropriate but that monetary compensation was. SDP Richards had to determine the likely duration of the applicant’s employment and noted that this was speculative. It was determined that the Applicant would not have been employed for a period of longer than another 12 weeks.

Section 392(4) of the Fair Work Act makes it mandatory for Fair Work Australia to reduce the amount it would otherwise have ordered in light of the misconduct for which the Applicant has been found objectively to have been responsible. The Applicant’s misconduct was found to be at the low end of the spectrum so the amount of 12 weeks pay awarded to the Applicant was reduced by only 10%.