Employers beware: Be clear – and legal – when dismissing an employee
If you are a business owner or HR practitioner, consider this fraught scenario: an employee is dismissed after refusing to agree to changes in his employment terms and conditions, and threatening to involve a union – leading to a claim of adverse action against the company. The employer claims the person was terminated for causing a workplace accident, but did not state this reason in his letter of termination. The result: reinstatement of the employee until his case of adverse action against the company is determined.
Mr Damen, a courier driver for Dee Vee Pty Ltd, claims his employer dismissed him because he had invoked his union, CEPU, to lodge a dispute with Fair Work Australia in August 2012, after his employer asked him to become a contractor rather than an employee.
The union alleges that Dee Vee - which has a contract to deliver parcels for Australia Post - dismissed the driver for exercising his right to ask for superannuation payments and a pay raise; for being a member of a union; and for proposing to engage in industrial activity in pursuit of a claim for awards benefits.
Following the union’s involvement in Mr Damen’s dispute with Dee Vee, an accident took place whereby a Dee Vee employee was struck by the van Mr Damen was reversing. Later that day Mr Damen was presented with a letter of termination, which purported to terminate his engagement immediately, without specifying a reason. The accompanying conversation included comments that arguably suggested the termination was at least partly attributable to him bringing in the union in relation to the superannuation and contract issues.
In a recent Federal Court decision Justice Richard Tracey deemed there was a serious question to be tried as to whether Dee Vee terminated the employment of the Victorian driver for a prohibited reason. Accordingly, Mr Damen’s reinstatement was ordered and the employer is restrained from terminating his employment, pending the determination of the CEPU’s adverse action application.
If these allegations were found to be true, the employer would be in breach of s340(1)(a)(i) and/or (ii) and/or s346(a) and/or (b) of the Fair Work Act.
Implications for employers
The perils of being unclear and uninformed in this situation have led to an undesirable outcome for both the employee. It is vitally important that business owners and their human resource practitioners understand employees’ rights, and must state clearly, in writing, the reasons for termination. This will enable a rebuttal of any potential later assertion that the reasons for termination were other than those stated by the employer.