Four good reasons unfair dismissal claims fail

Cases

Four good reasons unfair dismissal claims fail

The Fair Work Commission has rejected a spate of unfair dismissal claims, finding there had been a genuine redundancy, a resignation, a breach of good faith and an inability to carry out the job.

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The Fair Work Commission has rejected a spate of unfair dismissal claims, finding there had been a genuine redundancy, a resignation, a breach of good faith and an inability to carry out the job.

Agency took over job – genuine redundancy


The FWC found that a role that was allocated to an agency under contract constituted a genuine redundancy.

The applicant worked limited hours as sales representative due to a return to work plan after a workplace injury. The employer advised her that she was redundant due to a restructuring of the business and a downturn in sales.

The FWC commented that any allegation of improper treatment of the employee did not make the redundancy a sham. Consultation requirements were met and reasonable redeployment opportunities were not available.

The commission was satisfied an agent was contracted to undertake the sales function and the position was not filled by another employee.

D v Cheeki Holdings P/L t/a Cheeki [2016] FWC 2673 - O'Callaghan SDP - 2 May 2016 


Mechanic refused to work six-day shift


The FWC ruled that an employee who refused to continue working an agreed six-day shift effectively ended his own employment.

The motor mechanic accepted employment on the basis he was to work six days per week. He was not entitled to change working hours except by agreement.

When the mechanic told his employer he no longer wanted to work six days per week, he was advised he was no longer needed if he wouldn't work those hours.

The commission found there was nothing in what was said that indicated the employer was terminating the employment. It was in effect a resignation.

B v Discount Tyre and Auto Service Centre [2016] FWC 2734 - Gooley DP - 2 May 2016 


Working for another company justified dismissal


The applicant was employed from July 1990 to June 2015. He was dismissed when the employer  became aware he was working for another employer, Essential Imaging (EI). The employee argued that this was not a conflict, but the employer saw it differently.

The employee had received two prior warnings for misconduct. The commission ruled that the man's failure to disclose his involvement with EI, when considered with the two warnings already issued, had destroyed any trust between the employer and employee. The dismissal was valid.

L v Cryovac Australia P/L t/a Sealed Air [2016] FWC 2797 - Kovacic DP - 5 May 2016 


Driving while licence suspended justified sacking


The FWC ruled that a worker who drove when his licence was suspended had been justifiably dismissed. The suspension was discovered after the worker was stopped by police for using a mobile phone while driving.

The commission found the dismissal process had not been fairly managed, but the reason for dismissal outweighed this breach. The employee was the architect of his own downfall.

Z v Melway Bin Hire & Demolition P/L t/a Melway Bin Hire & Demolition [2016] FWC 2823 - Ryan C - 5 May 2016 

The bottom line: The facts have to show unfairness before an employee can succeed in an unfair dismissal application.

See also: Documents can make or break unfair dismissal claim 

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