Dismissing an employee while on personal leave

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker argued she was dismissed through an email while on personal leave. The employee worked for just under two years in a clerical role. The employer, a small business, defended their actions by arguing compliance with the Small Business Fair Dismissal Code citing genuine redundancy. So, the case became about whether proper dismissal procedures were followed regarding consultation requirements.

The employee's terms of employment included working from home arrangements due to a medical condition. On 8 July 2024, while on personal leave, the employee found out about her dismissal through her manager via an email sent at 6:44 AM. Furthermore, she discovered some staff had been informed she had resigned on 5 July 2024. The employer claimed they had discussed redundancy but was not able to provide any documentation to support these claims.

The manager who allegedly conducted these meetings did not attend the hearing. As noted above, the Employer relied on the Small Business Fair Dismissal Code Checklist, but the FWC had serious concerns about compliance with the Code. "There was no consultation with the employee before the decision to terminate her employment. As a consequence, she had no warning that her employment was in jeopardy."

How was the lack of consultation a breach of the Small Business Fair Dismissal Code?

In short, the Fair Work Act and Awards require specific consultation processes for major workplace changes. In this situation, while the employer presented evidence of financial problems, the Commissioner noted: "The employer appears to have ignored, or been unaware of, its obligations under the Award to consult with the employee before she was informed of her dismissal and it taking effect." The decision highlighted the employee "was denied the opportunity to question why the employer had selected her position and not another for redundancy."

For further advice on managing absenteeism or even major workplace change such as redundancies, please contact HRAnywhere on 1300 208 828 orinfo@hranywhere.com.au.