Steven v Donutz4Dayz*
On 21 January 2020 Steven was employed by Donutz4Dayz as a front of house attendant. His contract contained the following terms:
- He would have a performance review at 3 months and again at the end of 6 months of work.
- If there were any issues with performance in the intervening time:
- he would be invited to a meeting with not less than two business days’ notice;
- he would be given a letter outlining the concerns with his performance prior to the meeting;
- he would be entitled to bring a support person to the meeting; and
- if termination of his employment was being considered he would be notified in writing beforehand so that he could respond to this.
On 21 April 2020 Steven was called into the staff room by Melony, the Store Manager. Melony said to him to “come out the back for a quick chat”. Steven followed her and the quick chat turned out to be his three month performance review. Melony told Steven that there were no issues. His sales were up, Donutz4Dayz wasn’t aware of any customer complaints, and his colleagues seemed enjoy working with him. The review lasted no more than 4 minutes.
On 21 July 2020 Steven was called into the staff room by Melony again. She said to him to “come and talk to me about something.” This conversation turned out to be his six month performance review and Steven was given the same feedback from Melony as before. His sales were up, Donutz4Dayz wasn’t aware of any customer complaints, and his colleagues seemed to enjoy working with him. The review lasted no more than 10 minutes and was only longer than the previous review because Steven was being offered a promotion to Team Leader starting the following week. He would be in charge and responsible for the store when Melony wasn’t there.
On 28 July 2020 Steven had his first shift as Team Leader. He received a text message from Melony that night saying “Great first shift today! All good feedback from the team – keep up the good work 🙂 You’re the perfect fit for this role!!”
On 4 August 2020 Steven received a text message from Melony saying “Well done on a fantastic first week. We are all so impressed by you stepping up the way you have.”
On 6 August 2020 when Steven arrived at work for his shift Melony called him into the staff room “to talk about the last week”. Steven went to the staff room and saw that the Area Manager was also there. He sat down and was told by the Area Manager that someone had complained about him and that they took all allegations of harassment seriously. They also thought that he had been underperforming in his role as Team Leader. Accordingly, they were dismissing him effective immediately. Steven was told to hand back his work key and leave the store.
Was Steven protected from unfair dismissal?
At the time of dismissal he was a full time employee who had completed the minimum employment period of at least 6 months of service. This period is regulated by section 382 of the Fair Work Act 2009 (Cth) (“the Act”).
Was the dismissal an unfair dismissal?
Steven’s employment was terminated at the initiative of his employer and in circumstances that were harsh, unjust and unreasonable as contemplated by section 387 of the Act because:
- There was no valid reason for the dismissal;
- If there was a reason, Steven wasn’t given notice of the reason;
- Steven wasn’t given an opportunity to respond to the reason;
- Steven was not unreasonably refused a support person, but he was not notified of the meeting and was therefore denied the opportunity to have a support person present;
- Steven was not made aware of any issues with his performance prior to the dismissal. Indeed, he had received congratulatory messages telling him how well he was doing. He was therefore denied the opportunity to improve his performance; and
- Donutz4Dayz was a large employer with a dedicated HR team. They could have notified him of issues, implemented a performance management program, or taken any number of other steps to resolve the issues without terminating Steven’s employment.
How long does Steven have to act following his dismissal?
21 calendar days.
Applications for an Unfair Dismissal Remedy must be filed in the Fair Work Commission (“the Commission”) within 21 calendar days of the dismissal taking effect.
Calendar days include weekends and public holidays. Late applications are often not heard by the Commission. Steven should speak to a lawyer as soon as possible so that they have time to take his instructions and prepare the Application on his behalf.
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*Steven v Donutz4Dayz is example only and is entirely fictitious. They are not based on any particular matter, people or organisation.