The Fair Work Commission has found a casual elderly employee at a New South Wales caravan park was unfairly dismissed after he was fired on the spot by a business owner accused of acting like “some sort of Donald Trump”.
Two Shores Holiday Village in NSW has been ordered to pay nearly $19,000 in compensation to the 62-year-old worker after firing him for allegedly failing to fix a sprinkler system at the business.
The worker was employed at the business under previous owners to attend to the caravan park’s gardens. Upon the business being acquired by the current employers in 2015, the new employer directed the employee to fix a broken sprinkler and irrigation system. The Commission heard the new owner was informed of this and went along with it.
Two years later, upon noticing a number of plants were dying, the employer again asked the employee to fix the sprinkler system, but the employee said he needed additional parts to fix it. A day later, the employer asked him to fix it again and claimed the loss of plants was due to a lack of watering.
The employer then claimed the employee had been given two years to fix the system and fired him on the spot. The employee was not given a written notice of his termination but was given one week’s notice.
During the case, the employee’s lawyer criticised the employer’s actions, arguing the “sudden change in mind” by the employer was not grounds for a summary dismissal. Additionally, the lawyer criticised the employer for not consulting with any other directors at the company.
“[The employer] took this off his own bat and it appears to be some sort of Donald Trump, making all the decisions himself,” the employee’s lawyer stated.
The lawyer alleged the dismissal was also not in line with the Small Business Fair Dismissal Code and there was no procedural fairness in the process.
In response, the employer’s lawyer claimed the worker “fundamentally refused to follow instructions” and was unable to work without supervision. Additionally, the lawyer claimed it was unreasonable to expect “Rolls-Royce HR operations”, despite acknowledging the “procedural defects” associated with the dismissal.
However, Fair Work Commission ruled in favour of the employee, with commissioner Ian Cambridge saying the employee had no warning that failure to repair the sprinkler would lead to his dismissal.
“On the contrary, the applicant had an understandable belief that the employer tolerated the extensive delay with any repair to the irrigation/sprinkler system. The decision to dismiss the applicant was made by [the employer] in an outburst of frustration and for reasons that were not sound, well-founded or defensible,” Cambridge said.
“It is readily conceivable that if the applicant had been clearly advised and warned that his employment was in jeopardy unless he repaired the irrigation/sprinkler system immediately, and that he increased the watering of the flora, he would have complied with such directions.
“Consequently, the dismissal was without valid reason and involved significant procedural deficiencies. The dismissal of the applicant was harsh, unjust and unreasonable.”
The business was ordered to pay the employee $19,096 in compensation for lost wages, minus a $500 loan that was still outstanding.
Speaking to SmartCompany, director at Workplace Law Athena Koelmeyer says summary dismissals, such as what was demonstrated in this case, are only reasonable under extreme circumstances laid out in both the Fair Work Act and the Small Business Fair Dismissal Code.
“A summary dismissal is for when an employee has done something so bad it warrants an immediate end to their employment and is likened to serious misconduct,” she says.
“There’s a list of things in the regulation for when you can reasonably dismiss someone on the spot. This includes theft, fraud, violence, intoxication at work, or continually failing to comply with reasonable directions from the employer.”
While these are the only reasonable grounds upon which employers are able to summarily dismiss someone, Koelmeyer says even in these cases it’s best to provide procedural fairness and give employees a chance to defend themselves.
“You see it in family and small businesses when people think they can do what they like with employees because it’s their business. While this is an understandable belief, it’s not one that stands up in the face of Australian employment law,” she says.
“Just because you own everything doesn’t mean you can act like Mr Trump and fire from the hip.”
Koelmeyer advises SMEs to always provide any decisions or discussions around terminations in writing and to ensure they act within the Small Business Fair Dismissal Code, if it applies to their business.
SmartCompany contacted Two Shores Holiday Village but was told the business was unable to comment.
Comments