BlandsLaw - Blog posts from HR Manager
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A very flawed approach to the Dismissal Process

It’s a recurring issue that many employers seem to struggle with: getting the dismissal process right. It appears simple enough- if an employer has a valid reason for a dismissal and the process is handled with procedural fairness, then there should be no reason for an unfair dismissal claim. But why do so many employers get it wrong?

In a recent FWC[1] case it was held that an employee was unfairly dismissed despite his behavioural, performance and conduct issues which included the downloading and storing of pornographic material on his company phone and laptop. Unfortunately, the disciplinary process and the employee’s dismissal were riddled with errors which resulted in a termination that was found to be harsh, unjust and unreasonable.

Smarter Insurance Brokers, a small business, had mistakenly relied upon a clause in the employee’s contract that it believed meant payment in lieu of notice would relieve it of the obligation to provide a substantive reason for dismissal. Consequently the employer dismissed the employee and paid out the notice period

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We have written previously about Cerin v ACI Operations Pty Ltd & Ors. The Federal Circuit Court has now determined the applicable penalties and ordered that the HR manager pay a penalty of $1020 for her role in the contravention. The employer, ACI, whose role was held to be more serious, was fined $20,400 in penalties. 

By way of background, the Applicant employee was dismissed and successfully brought a case against both the employer and the HR manager involved in his termination for breach of the notice provisions in the Fair Work Act 2009 (Cth) (‘FWA’). The employee received pay in lieu of notice and for reasons that were not clear the amount he received was a couple of days short of what is required by the NES. The earlier decision held that both the HR manager and the employer were liable and this decision has now confirmed the penalties that apply to each.

Lessons for Employers

The issue was not the relatively small amount of the underpayment but rather

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