Unfair dismissal not compensated by any relief

Yesterday I published a post about an unfair dismissal case in which the Fair Work Commission determined that an employer was entitled to terminate the employment of an employee who had failed to disclose to the employer that he had a second job in a similar field to that undertaken by the employer.

The reasoning was that there was a valid reason for the employee’s dismissal. The case is also interesting because the Commissioner decided that although the dismissal was unfair because of procedural irregularities by the employer in the dismissal, the applicant was not entitled to any relief because he had not sought reinstatement, had not produced and evidence of financial loss and in any event was not entitled to any monetary compensation due to his misconduct.

“Conclusion

The applicant was dismissed for what the employer considered to be a fundamental breach of his employment contract involving his engagement in undisclosed secondary employment as a contract paraplanner. The nature and extent of the applicant’s activities in respect of the undisclosed secondary employment was considered to represent conduct that was in direct conflict with the business interests of the employer. Upon careful analysis, the employer’s findings in respect to the applicant’s engagement in undisclosed secondary employment have been confirmed.

The applicant was engaged in undisclosed secondary employment of significant magnitude and in work in the financial services industry. The nature and extent of the applicant’s engagement in undisclosed secondary employment represented misconduct that was plainly inconsistent with the continuation of employment, and it established valid reason for the dismissal of the applicant. However, the valid reason for dismissal has required assessment and evaluation against significant procedural errors which were evident in the manner in which the employer determined and implemented the dismissal of the applicant.

The procedural errors in this case were matters of significance such that the applicant was denied procedural fairness. The employer was entitled to act swiftly when it discovered evidence of the applicant’s secondary employment. The immediate suspension of the applicant from the workplace and his removal from access to email and other IT facilities was appropriate action in the circumstances. However, the employer then hastily convened a meeting with the applicant without first clearly articulating the issues under examination. Further, the employer moved too quickly with its determination to dismiss the applicant conveyed verbally during the meeting held on 30 October 2019. The dismissal of the applicant was clearly undertaken with the adoption of defective procedure.

Consequently, the applicant was dismissed for valid reason involving his misconduct arising from his significant engagement in undisclosed secondary employment that was inimical to the interests of the employer. However, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant have rendered the dismissal to have been unreasonable. The applicant’s dismissal has been found to have been procedurally unfair, albeit for valid reason, and accordingly, the Commission must consider the appropriate remedy that should be provided in this instance.

Remedy

[71] The application document (Form F2) indicated that the remedy sought by the applicant was:

“1. A letter rescinding my termination, and acceptance of my resignation to the same dates as my original termination and notice period.

  1. My final pay calculation be revised to reflect the stated policy around refund of education or professional development costs as provided in section 8.2 and 8.6 of the Luka Group Team Member’s Handbook (Version 1).”

[72] At no stage has there been any suggestion that the applicant sought reinstatement as remedy for his unfair dismissal. Further, the applicant has not articulated or advanced a position in respect of a remedy involving monetary compensation. It appeared that the applicant’s motivation for the pursuit of his unfair dismissal claim was confined to a determination in his favour, rather than any remedy of either reinstatement or monetary compensation.

[73] In the circumstances of this case involving a dismissal for valid reason but with procedural deficiency, reinstatement would not be an appropriate remedy. Further, in the particular circumstances of this case which involved misconduct in the financial services industry, it is understandable that the employer would reject any proposition of “converting” the dismissal into a resignation and potentially misrepresenting the true record.

It would be inappropriate for the Commission to proceed to contemplate monetary compensation in the absence of any articulated pursuit of such a remedy. In any event, if compensation was to be considered, the misconduct of the applicant would, having regard for s. 392 (3) of the Act, been reduced to $0.00, on the basis that the employer has confirmed that it shall cease and desist from any pursuit of the erroneous invoice arising from the applicant’s final pay calculation.

Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, the application for relief from unfair dismissal is determined on the basis that the dismissal of the applicant was procedurally unfair but for valid reason.

Therefore, in this instance, no Orders in respect of remedy shall be made, and the application for unfair dismissal is finalised accordingly.

 

 

Harris v Luka Financial Pty Limited (2020) FWC 5402 delivered 16 October 2020 per Cambridge C