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The Importance of a Fair Process: A Case Study

Published June 30, 2021 (last updated July 1, 2021) Author: Employsure Face2Face
employsure face to face importance of a fair process

Have you ever had an employee push you towards breaking point? When they are following instructions and working hard it’s great, however if things go south, do you feel confident enough to stay levelheaded and deliver a fair process?

A Case Study

In September 2020, The Fair Work Commission ruled on the case of Michael Lyle Jones v Karisma Joinery Pty Ltd where the employee claimed to have been unfairly dismissed. The employee, who had been with the business for five years, engaged in repeated swearing and abusive behaviour over the phone. The aggressive behaviour was directed towards a manager in response to a reasonable management request. The Managing Director decided this was not going to be tolerated and terminated the employee via email, several hours after the phone call occurred. The Commission concluded that the business had a valid reason to terminate the employee for serious misconduct based on their behaviour, however, they did not follow a fair process to get there. A similar case finalised in November 2020, Hayley Howard-Colla v AMJK Pty Ltd T/A Bloom Bar & Lounge, echoed the findings. Both cases ended in favour of the employee and both employees received financial compensation as part of the outcome.

When the Commission consider an unfair dismissal case, they look at a variety of factors in order to reach their judgement. Under the Fair Work Act 2009, one of the key factors considered is the process undertaken to get to the outcome. Following a fair process includes: whether the person was told that they may be terminated, whether the person had a chance to explain themselves, whether they were offered to have someone with them when they explained themselves, as well as several other factors.

Therefore, having a good reason to terminate someone is only part of a bigger picture. You can’t rely on a valid reason without a fair process.

The Karisma and Bloom cases demonstrate that even difficult employees are entitled to procedural fairness. As a manager, it’s hard to consider all of these factors when you are dealing with the emotional response towards challenging employee behaviour.

Employsure Face2Face Can Help You

Employsure Face2Face can provide support to your business (which may be at an additional cost), either onsite or via video conference, to eliminate the emotional burden of the situation. Available only to clients of Employsure.

About Employsure

Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 29,000 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

References:

Michael Lyle Jones v Karisma Joinery Pty Ltd [2020] FWC 5051 (25 September 2020)

Hayley Howard-Colla v AMJK Pty Ltd T/A Bloom Bar & Lounge [2020] FWC 6084 (12 November 2020)

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