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Employment and Migration Blog

Just because HR carries out the dismissal doesn’t mean it was done fairly

Posted by Laure Kenworthy on 6 Apr 2021

When all is said and done, an employer may have a valid reason for sacking an employee, but if the sacking is unfair, the employer will be at risk of an unfair dismissal claim.

This was the basis of the decision by the Fair Work Commission (the Commission) in the matter of Angele Chandler v Bed Bath ‘N’ Table [2020] FWC (the Chandler Case).

The Facts

In March 2020, Angele Chandler was dismissed from her employment as a casual sales assistant at a Bed Bath ‘N’ Table (BBT) store. The reason for the dismissal was Ms Chandler’s alleged misconduct, including:

  • texting the store manager to indicate shift unavailability rather than calling the regional manager as the employer’s policy required; and
  • refusing to accept the regional manager’s viewpoint in a meeting about her failure to comply with policy, including an aggressive complaint without substance.

BBT expressed that Ms Chandler’s lack of respect towards the regional manager and “disrespectful, insubordinate and intimidating conduct” was “appalling”, creating “a threat to the health and safety” of the regional manager.

The Decision

Commissioner Tim Lee, considered evidence of recordings made in secret by Ms Chandler of the disciplinary meeting and phone calls between Ms Chandler, the regional manager and a former HR manager in addition to email exchanges between them.

The Commissioner determined that while one email from Ms Chandler to the regional manager was sarcastic in tone and “to that extent disrespectful”, the tone of Ms Chandler’s messages was not otherwise intimidating or disrespectful. Ms Chandler’s communications were considered to constitute a forthright expression of her genuine concerns as to her recent reduction in hours.

Furthermore, the meeting with Ms Chandler had been “robust” in nature. However, the recording did not provide any reason for the Commissioner to believe Ms Chandler had been aggressive, or that the manager had felt intimidated or uncomfortable.

The Commissioner found that although the covert recordings by Ms Chandler provided a valid reason for dismissal after the fact, there were numerous flaws in the dismissal process, which may have ultimately justified the recording.

The Commissioner made the following considerations with respect to BBT’s dismissal process:

  1. It was unreasonable for BTT to demand the initial disciplinary meeting after a request from Ms Chandler for more time, especially after the HR Manager was provided with an opportunity to reschedule the meeting in a prior phone call;
  2. The HR manager had misled Ms Chandler with the claim that only 24 hours of notice was required for the meeting under the Fair Work Act 2009 (Cth) (FWA);
  3. The HR manager had made the ridiculous claim that the FWA did not require her to give Ms Chandler the specific legislation relating to notification timing; and
  4. The HR manager had emailed Ms Chandler an email warning that non-attendance at the scheduled meeting would result in her suspension without pay. However, the manager then dismissed Ms Chandler for her non-attendance.

The above considerations led the Commissioner to remark that the process followed by the HR manager was “bungled and incompetent”.

BTT responded by acknowledging that their dismissal procedure was likely affected by the lack of dedicated HR management expertise by the particular HR manager, though there were other dedicated HR specialists and experts in the business.

Take Away

This case demonstrates that it will not be enough to have a person in the role of HR specialist if they are not equipped with the expertise and knowledge relating to the procedural requirements for effecting a dismissal with fairness. The dismissal process is multi-faceted, and failure to fulfil any of the obligations with respect to this process may amount to employer liability.

If you have any questions please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be happy to assist you today.  

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