Ouch! The Capricious, Fanciful, Spiteful, Extraordinarily Heartless, Unconscionably Insensitive… Employer by Kate Ausden

Kate Ausden Blog

The Fair Work Commission oversees a myriad of complaints, claims, spurious accusations and convenient half-truths (or, as they are now known, ‘alternate facts’), but rarely is an employer singled out for its “capricious, fanciful and spiteful” behaviour.

A chef working in a Sydney CBD ‘healthy’ style diner had been on sick leave and, in hospital undergoing cancer treatment for only one week, when his employer deemed him to have abandoned his employment and, subsequently terminated his employment.

It just sounds wrong, doesn’t it? And, the Fair Work Commission agreed.

In order for the employer to succeed it had to prove that it had acted consistently with the Small Business Fair Dismissal Code (SBFDC), among other things.

The employee had received a warning and had his pay docked in the month prior to termination for the alleged misdeed of closing the diner early. The employer, in order to fall under the protections in the SBFDC, alleged that the employee was summarily dismissed for timesheet fraud connected to the shop closure incident and, was not dismissed because of his illness or short-term leave.

This was clearly not supported by the facts.

Summary dismissal only occurs in circumstances of serious misconduct, which require immediate intervention by the employer. In this case, there appeared to be no causation between the alleged misdeed and the termination itself.

Further, the employer made no genuine attempt to solicit information from the employee about his short-term/long-term health prognosis prior to hastily terminating his employment and replacing him with another employee, almost immediately.

The employer’s reasoning didn’t align with the factual matrix.

The employer’s conduct drew criticism from Commissioner Cambridge, who commented, “such reason was capricious, fanciful and spiteful.” The only implication being that the employer manufactured the reason for termination in order to avoid the inconvenient truth that the employee had been terminated for being sick.

As an aside, it should be noted that the employer’s conduct fell far short of the requirements in section 387 of the Fair Work Act in that there was no reason, warning, formal notice, meeting or support person present. Commissioner Cambridge commented that the process leading to the termination was “plainly unjust, manifestly unreasonable, unnecessarily harsh, and, in this case, unconscionably insensitive.”

As the dismissal was not consistent with the SBFDC and there was not a valid reason for dismissal, the employee’s unfair dismissal claim was successful. The employer was ordered to pay the employee $18,200. Bravo Commissioner Cambridge!

Chanintorn Siri v Urban Orchard Food Pty Limited [2019] FWC 3177 (21 May 2019)