Dismissals round-up 4/02/04


Dismissals round-up 4/02/04

Three cases reported here cover two alleged constructive dismissals and a dismissal found to be harsh but not unjust.


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Three cases reported here cover two alleged constructive dismissals and a dismissal found to be harsh but not unjust.

Higher sales target did not constitute constructive dismissal

The AIRC found that an increase in sales target for the applicant was not the real cause of her leaving the company. The applicant’s unfair dismissal claim based on constructive dismissal was rejected.

She had been offered an ongoing agreement, in similar terms as her previous agreements, save that the budget targets had been increased. The following words appeared in the agreement: "The company reserves the right to change the terms and conditions of this agreement from time to time & shall advise the Sales Person of same verbally &/or in memo form."

The changes for late 2003/2004 were advised by the company from August 2003. Instead of continuing with her work as in previous years when budgets had increased, Ms Masefield did not attempt to reach the new budget.

The AIRC found that the resignation was not a constructive dismissal.

Commissioner Foggo started:

‘It was certainly unfortunate that the telephone sales job was not to Ms Masefield's liking and that she resigned after only eleven days in the position. There has been no suggestion that Ms Masefield even raised with the company her desire to return to a road sales representative position and that she may have made an incorrect decision.’

See: J. Masefield v Carbonrib Co. Pty Limited– AIRC – Foggo C – 23 January 2004.

Refusal to change shift justified dismissal

A Full Bench of the AIRC dismissed an appeal by a cleaner who claimed she was refused a change in shift despite telling her employer she was suffering from a stress disorder caused by working at night.

The Full Bench found that the cleaner’s decision to resign rather than work nights was not a constructive dismissal. She did not produce a medical certificate or other evidence to support her alleged stress condition. In addition, no workers’ compensation claim was lodged over the alleged condition.

See: Alece Whitmore v Berkeley Challenge Pty Ltd – FB of AIRC – 21 January 2004.

Harsh but not unjust dismissal for compromising employer's business

The AIRC found that a long-term employee who had potentially damaged his employer’s business in an email to a client of his employer was not unjustly dismissed.However, his dismissal was harsh as his termination resulted in financial hardship for the employee.

The applicant’s original letter of employment stated that he was under a duty to do nothing that would "in any way compromise or be considered as compromising the good name or integrity of (ABB)... with customers or clients, or with any third party".

He sent an email to the key  officials of a customer with whom he regularly interacted stating that, "after discussions with ABB supervision, I have been advised that no ABB employee receives remuneration for carrying out HV permit issuing and access permit isolation and earthing work.The training and experience is not recognised.Therefore with regret, I must advise that I will be withdrawing from the accreditation list".

The sending of this email constituted a breach by the applicant of his contractual obligation to ABB in regard to the provision of services to the ABB customer, Pilkington, and was also a serious defiance of his supervisor’s directions.


Conduct that made his dismissal just included:

  • blatant defiance of his supervisor twenty minutes after the supervisor had given him a direction to do the HV work;
  • the email was sent to ABB's client  was likely to have had an adverse impact on ABB's relationship with that client; and
  • the email was not sent to his supervisor.

However, the Commissioner Grainger found the dismissal harsh because the applicant suffered considerable financial disadvantage through the loss of his position. What he suffered was disproportionate to the gravity of the misconduct.

See: Greg McNair v ABB Australia Pty Ltd – AIRC – Grainger C – 30 January 2004.

See also: a discussion of constructive dismissal and a case where constructive dismissal was substantiated.


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