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FWC Continues to Consider Fair Process

Whilst IR rules have been amended to provide some flexibilities when managing employees during the COVID-19 pandemic, recent cases determined by the Fair Work Commission present a reminder to employers that they are still considering Fair Process in their caseload. 

In the first case, an employee made redundant by a small business was awarded $7,000 compensation because the due consultation process had not been followed.

In Mr Nikolas Allen v Dapto Fish Feast [2020] FWC 3657 (2 September 2020), Commissioner Bernie Riordan noted how the pandemic has resulted in an unprecedented upheaval of global labour relations, and whilst workplace relations have been appropriately relaxed during this period, the underlying notion of a ‘fair go’ has been maintained.

Employees are entitled to be consulted about change relating to their employment and in this instance it did not occur.

In a second case, an accountant was awarded compensation of $40,940 after it was found that they were forced to resign.

Following an employer funded Christmas party held at an Airbnb and the purchase of a hot pink laptop for a newly promoted employee, rumours were being spread about the employer conducting an inter office affair.

The employer chose to hold a ballot of staff asking them to name the person behind the rumours and after 2 employees named the accountant, the employer presented the accountant with a pre written resignation letter and demanded their resignation.

In determining the outcome, Commissioner Cambridge observed that there were a number of very unusual aspects of the workplace that may cause a culture of innuendo and rumour.  Further consideration was given to the failure by the employer to conduct a reasonable investigation giving careful consideration to the potential that the employees responsible for naming the accountant could well have done this to deflect attention from themselves.

Due to the employer providing the employee with a written resignation letter and demanding their signature a finding of constructive dismissal was made.

For assistance with your obligations regarding due process relating to termination, please contact us at [email protected] or 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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