'Dismissal' misunderstood by nesb worker

Cases

'Dismissal' misunderstood by nesb worker

An employee from a non-English speaking background was dismissed from her employment for not following a lawful direction.

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An employee from a non-English speaking background was dismissed from her employment for not following a lawful direction.

The employee had been employed for over 13 years when she was dismissed from her position as a process worker. Prior to her dismissal, the employee had sustained some injuries and had been required to take some time off. On her return, the employer had a work assessment done at another work site and a suitable job was found for the employee (Maluk v Sutton Tools Pty Ltd; Print R0426, [1999] 003 IRCommA).

The employee, however, did not wish to transfer to the other site. She wanted to stay in her current position where she was packing. There were limitations, as a result of the employee's injury, as to how much the employee was able to lift. The employer argued that there was not sufficient work for the employee in her current position and that she was required to transfer to the alternative plant.

A counselling meeting was held where it was put to the employee that she was required to transfer or she would be dismissed. There was some misunderstanding at the meeting and the employer thought the employee understood that she was to transfer to the other position however the employee thought she was being permitted to remain in her current position. The employee arrived for work the next day and commenced work in her current position. The employer considered that the employee was refusing to follow a lawful direction and so dismissed her.

The Australian Industrial Relations Commission found there was no valid reason for the termination because of the employee's failure to completely understand the full extent of the counselling meeting the previous day. Further, the Commission found the employee was not given an opportunity to respond to the employer's allegation.

 

Remedy

Reinstatement was not ordered as the Commission considered that 'tension' between the employee and employer would continue. Compensation in the amount of $3,728 (eight weeks' pay) was awarded. In reaching this amount the Commission considered that:

  • the woman would have only been employed by the employer for another couple of weeks because of her refusal to transfer positions;
  • the employee's prospects for obtaining alternative work were limited (due to poor English language skills and age);
  • the employee had made a reasonable effort to mitigate her loss; and
  • the employee's length of service (over 13 years).
 
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