Unfair dismissal despite valid reason

The Fair Work Commission has held that an employer had a valid reason for dismissal an employee who, acting on wrong advice from her union, refused to attend a meeting with the employer the discuss performance issues unless the matters to be discussed were put in writing.

In the absence of an employer being bound by its own policies which might require it to do provide such matters in writing, as a general principle an employer is under no general duty to do so.

Nevertheless the Commission held that the dismissal was harsh, unjust and unreasonable (the ultimate test). Here is the reasoning in a passage from the decision.

The UWU has obviously embarked on a campaign to educate members on their rights in relation to attending meetings with management. Unfortunately for the Applicant, the UWU distributed information to its members and gave instructions to its officials which is just plainly wrong. To state that an employer does not have the right to discuss any issues with their staff without putting the reason for the meeting in writing cuts across the basic premise of managerial prerogative. The misinformation displayed by the UWU and expressed by Mr Manich, resulted in the Applicant losing her job.

[70] I suspect that a significant portion of the responsibility for the Applicant’s termination rests with the UWU. Representing members carries a significant responsibility for any union official. The advice that a union official gives will be relied upon by its members. I accept that no union is infallible but the leadership of the UWU had an obligation to ensure that the information contained in their campaign propaganda was legal and accurate.

[71] Although Mr McShane may have provided accurate alternate advice to the Applicant at the meeting on 29 June 2020, the Applicant insisted on following the advice on the UWU’s posters.

[72] As a result, the Applicant insisted that she would continue to defy any request to attend a meeting with the Respondent unless the reason for the meeting was provided in writing. Therefore, the illegal behaviour of the Applicant was going to continue.

[73] I am not convinced that the Respondent’s policy of holding information gathering meetings without an employee nominated support person present is appropriate. To do so allows for either party to be verballed. For the Respondent to be able to stop an information meeting at a critical point and claim that the meeting is now a disciplinary process is also inappropriate. Further, it is obvious that a verbal warning is part of any disciplinary process and should be treated as such by the parties.

[74] I am satisfied that Mr Whalan advised the Applicant that the meeting was not a disciplinary meeting. In relation to the principles in Avenia the Respondent’s assertion that the meeting was not disciplinary should have satisfied the Applicant’s misapprehension that the meeting was not a disciplinary meeting.

[75] I am satisfied and find that the Respondent had a valid reason to terminate the Applicant on the basis that the Applicant refused to comply with a reasonable direction. If the Applicant had refused to attend a meeting because her union delegate was unavailable, then that reason would have been acceptable.

[76] It is unfortunate in the extreme that such a minor issue such as a meeting invitation has led to the termination of the Applicant. However, the Applicant was not dismissed for breaching the uniform policy. The Applicant was dismissed for the serious reason of failing to follow a lawful direction, albeit on the advice of the UWU.

[77] Despite having found that the Respondent had a valid reason to terminate the Applicant, a dismissal can still be deemed unfair because it is harsh, unjust or unreasonable.

[78] I am not comfortable with the Applicant being required to carry the burden of her dismissal throughout the rest of her employment career based on the poor advice that was provided to the Applicant by the UWU.

[79] There is little doubt that the Applicant is a very strong-willed young woman. She was prepared to stand up for her rights at work based on the trust that she had in her union. The fact that the UWU gave her poor advice is not her fault. If representative error can be used by an applicant to overcome the statutory time limit of an unfair dismissal application then common sense would allow an applicant to use the same ground to mitigate their conduct which created the valid reason for their termination. I find that the termination of the Applicant by following the advice of the UWU was unreasonable the Respondent should have notified a dispute to the Commission in relation to the UWU’s campaign.

[80] Further, the termination of an employee residing in south west Sydney during COVID-19, emanating from a trivial issue such as non-compliance with a clothing policy, with the unlikelihood of gaining alternative employment renders the termination harsh. Whilst I understand the frustration of the Respondent, attempts should have been made by the Respondent to contact the leadership team of the UWU to highlight their concerns about the Unions ill-informed campaign material.

[81] As a result, I find the dismissal of the Applicant was harsh and unreasonable primarily due to the representative error of the UWU.”




Stephanie Fisher v Cabra-Vale Ex-Active Servicemen’s Club Ltd t/a Campbelltown RSL [2020] FWC 5703 delivered 23 December 2020 per Riordan C