Reference no: EM132327289

Human Resources Assignment -

Unfair dismissal case study: Homes v Coles Group Limited By Charles Power on February 21st, 2014

[Ed Note: Dismissing an employee for misconduct can be risky. You must understand when dismissal is unlawful. Your decision to dismiss an employee must be based on defensible and lawful reasons. This means you must be able to show:

• That the dismissal relates to the employee's capacity or conduct; and
• That the facts and circumstances constituting the reason for the dismissal can be proven.

If a tribunal, such as the Fair Work Commission (FWC), reviews your decision to dismiss on fairness grounds, it will expect you to justify that dismissal was the appropriate response to the problem. That means, the punishment must fit the crime! Today, Charles Power is going to take us through a recent case in which the Fair Work Commission considered these things.]

Case study: Homes v Coles Group Limited

In Homes v Coles Group Limited T/A Coles Warehouse Edinburgh Parks (2014), the FWC reinstated a worker who was found to have been dismissed unfairly.

The facts of the case are as follows:

Coles Warehouse provided Milo, among other things, in its break room for the staff to consume during their breaks. An employee regularly took some of the Milo home in a container to mix it with his own drinking chocolate, coffee and raw sugar. He would then bring the mix into work for consumption during his breaks.

On 30 August 2013, management at Coles Warehouse was informed by another worker that the employee had been seen spooning Milo into a container and putting it in his bag.

A security officer searched the employee, and when confronted about the container, the employee said that he had brought it from home.

Coles Warehouse suspended the employee pending an investigation.

Eleven days later, management interviewed the employee about the matter. At the interview, the employee confessed that the Milo came from the break room but said that he had been so shocked when asked about it on 30 August that he had lied about it being his.

Coles Warehouse dismissed the employee for serious and wilful misconduct, maintaining that he had breached the company's Code of Conduct by taking the Milo and then lying about it.

Senior Deputy President O'Callaghan said he was satisfied on the evidence that the worker drank his Milo mix only at work and that his general practice was to take it home to prepare the mix.

He also agreed that the worker had been shocked when interrogated on 30 August, and had more detailed or different questions been asked, "a quite different light may have been cast on the matter".

"I have concluded that Coles provided the Milo to employees for use at work and that, notwithstanding that in a legal sense, ownership of the Milo became vested with the employees when they took it from the dispenser, consumption of that Milo for personal reasons outside of work would represent misuse and hence misconduct," the Senior Deputy President said.

He said the evidence clearly indicated that the worker was "using the Milo for the purpose for which it was intended".

"I have concluded that he should not have taken the Milo home but I do not consider that his actions in doing so represented theft or inappropriate behaviour which could form a valid reason for termination of his employment, let alone summary dismissal."

The Senior Deputy President also found that the worker's response on 30 August was not a valid reason for dismissal, given his "shocked and somewhat confused" state.

The employee was reinstated and awarded his lost remuneration for the full period between the dismissal and reinstatement.

Requirement -

• Introduction
• Use IRAC method
• Section and sub section

Case study - summary dismissel or summary termination

I recently wrote about how employers need more than a valid reason to sack an employee. You can read that blog here.

In the case of John v The Star Pty Ltd [2014] FWC 543 the worker (Matthew John) was summarily dismissed (basically, without notice or warning) as it was alleged that his conduct amounted to a serious breach of his duties.

John was employed as a security officer at The Star Casino in Sydney. He was delegated to work as a member of the Welcome Team which required him to stand across the entrance and identify people who appeared to be under 25 years of age and beckon such people to produce identification to verify that they were at least 18 years of age (known as "vetting").

At about 11.36 pm on Saturday 27 April 2013 a 17 year old female attempted to gain entry to the Marquee Night Club. She was ejected from the casino but it was discovered by security staff at the Marquee vetting point that she had managed to gain entry to the main gaming floor of the casino via the Harbour side entrance which was where John was situated. The employer investigated the matter and after considering CCTV footage it was established that the minor had gained entry via the Harbour side entrance when she produced ID to John who permitted her entry without performing a thorough vetting of her ID (ie. without looking back up at her to verify her identity). On 2 May 2013 John attended a disciplinary meeting with the employer's managers. He was questioned about the incident. He admitted that he did not perform a thorough vetting of the minor's ID. However, he suggested that there were particular circumstances which contributed to his less than adequate examination of the minor's ID.

He said that he was stressed and distracted due to there being insufficient staff on the Harbour side entrance on that particular night and that the team leader was absent at the time and although he had asked for assistance this had not been provided. The meeting was adjourned to allow the employer's managers to consider the applicant's explanations and after a break of 35 minutes the disciplinary meeting resumed and John was told that his employment was summarily terminated for failing to conduct a proper ID check. Some 22 days later he was provided with a formal letter specifying immediate termination of his employment due to a serious breach of his employment duties. John had been a security guard with The Star Casino for five and a half years.

As discussed in my previous blog referred to above, on considering whether a worker has been unfairly dismissed, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable, taking into account the criteria specified in Section 387 of the Fair Work Act 2009. It can be found here.

In the present case Commissioner Cambridge emphasised that any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice. The employer argued that the applicant was summarily dismissed for an act of alleged gross negligence. However, Commissioner Cambridge held that upon proper analysis, the applicant's admittedly deficient work performance did not constitute the gross negligence which might justify summary dismissal. He commented:

"The applicant's conduct did not involve the grave, serious or significant departure from the standard of care which should have been exercised and which caused substantial loss or damage to the employer, such as would be necessary to provide valid reason for his summary dismissal. Regrettably, the employer adopted entirely unreasonable standards and expectations of the particular performance by the applicant." In response to the method of dealing with the worker's deficient work performance, he commented "Natural justice is denied if a person is required to respond to allegations at the time that the details of those allegations is first conveyed to them ... the decision to dismiss the applicant was a completely disproportionate overreaction to the negligent action of the applicant."

It was held that John's dismissal was harsh, unjust and unreasonable. Commissioner Cambridge made orders for reinstatement of John's employment.

Employers must therefore adopt reasonable standards and expectations of the performance of workers. Where they deem a worker's performance to be lacking the law provides that employers must afford the worker procedural fairness in relation to the investigation process and proposed termination.

Requirement -

• Introduction
• Use IRAC method
• Section and sub section

Essay type question -

Question 1 - Minimum work condition for Australian worker.

Requirement - Introduction, body and conclusion (essay type)

• Term and condition
• The fair work ACT
• National employment standard
• Objectives
• One example

Question 2 - Explain briefly the objective of the law in fair work act. Why do we need fair work act?

Requirement - Introduction, body and conclusion (essay type)

• National employment standard
• Objectives
• When breaches the contract
• One example

Note - Use very simple language.