FWC lets rip over 'callous' email sacking


FWC lets rip over 'callous' email sacking

The Fair Work Commission has blasted an employer for sacking a mentally ill worker by email, describing it as extraordinarily insensitive, highly inappropriate and callous 'almost beyond belief'.


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The Fair Work Commission has blasted an employer for sacking a mentally ill worker by email, describing it as extraordinarily insensitive, highly inappropriate and callous 'almost beyond belief''.

Commissioner Cambridge was also critical of the company's HR team, saying it was "surprising to observe some of the substantive and procedural errors that were made".

He suggested Komatsu Forklift Australia, an employer of about 153 workers, might benefit from a review of its employee management practices.


John Finnegan was dismissed in November 2016 after Komatsu claimed he was unable to perform the inherent requirements of his position.

Mr Finnegan was employed in 2008 as a field service technician. In 2014 he was promoted to customer service supervisor, where he had to meet sales targets as part of his key performance indicators.

In August 2015 he was placed on a performance improvement plan (PIP) after failing to meet KPIs. However, this was suspended in December 2015 to allow him to demonstrate his ability to perform under a new manager, Mr Leontis.

During February and March difficulties emerged with his relationship with Mr Leontis, and it became clear to his employer he was experiencing mental health problems.

Directed to take sick leave

In March 2016 Mr Finnegan was directed to take immediate sick leave due to ongoing concerns regarding his behaviour and work performance. He was given a letter formalising this advice and told to complete a fitness for duty assessment with a psychological test.

An independent assessment concluded he was temporarily unfit for work with his current manager, and that alternative work arrangements should be pursued.

A return to work plan was implemented in April which entailed a different work location and duties to be performed for Komatsu Australia (Komatsu Forklifts is part of Komatsu Australia). It did not involve any KPI requirements or any supervision from Mr Leontis.

But after two weeks Mr Finnegan was transferred back to duties for Komatsu Forklifts, albeit at a different location and not immediately under direction from Mr Leontis.

The Commission heard that Mr Finnegan expressed his concerns about an anticipated return to any work under the direct supervision of Mr Leontis.

Subsequently, his employer decided to cease the return to work plan, and the Mr Finnegan was asked to leave the workplace.

Lead-up to the dismissal

At a meeting in May with senior managers, Mr Finnegan was directed to return to his role as customer service supervisor. He was sent a letter on May 17 setting out the requirements but failed to respond to the letter or return to work on May 23.

Instead, he provided a medical certificate stating he was unfit to work, followed by a workers compensation claim which was subsequently rejected.

The following month his treating doctor responded to another letter from his employer, and advised he didn't have any current capacity for work. 

After a three-month absence on unpaid leave, the employer wrote again to Mr Finnegan, advising that it was considering deeming him unfit to work, which would result in employment ceasing.

Lawyers acting on Mr Finnegan's behalf responded seeking an extension of time which was granted. However a second request for more time was denied.

In November Komatsu emailed a letter of dismissal to Mr Finnegan.


Mr Finnegan claimed his dismissal was unfair due to procedural errors and misinformation that his employer had acted on.

He said he was given no opportunity to respond before he was directed to take sick leave and that Komatsu had been "deceptive, deceitful and bullying" from the outset.

Meanwhile, Komatsu submitted the valid reason for the dismissal was that Mr Finnegan was unable to perform the inherent requirements of the job.

It claimed he had continually refused and resisted work with any management structure, leaving the employer with no alternative but to terminate his employment.


Commission Cambridge found the employer's reason for dismissal was not factually correct.

He pointed out that Mr Finnegan "did not refuse to perform work but was unable to perform work, and this was supported by medical certificates".

He said it appeared that the actual reason for dismissal "may have involved the frustration of the employment created by an extended period of absence due to illness". As this was not established, there had been no valid reason for the dismissal.

Commissioner Cambridge then took aim at the manner of dismissal.

"In circumstances where an employee of some eight years of service who was suffering from mental health issues, and who had previously only communicated via his treating medical practitioner or his lawyer, it was callous, almost beyond belief, for Komatsu to dispatch an email communication as the means to convey the decision to dismiss.

"For the letter of dismissal to conclude with the words “I wish you all the best for the future” whilst the applicant was being discarded in such a perfunctory and impersonal manner reflects very poorly upon a corporation of the size and statue of Komatsu."

The Commissioner said notification of dismissal by electronic means should be strenuously avoided.

HR lambasted

He also berated Komatsu's 'HR specialists', saying that fundamental elements of due process were seemingly overlooked.

"It was also surprising that, despite the involvement of 'HR specialists', Komatsu would fundamentally misconstrue the applicant’s extended absence on certified sick leave to represent a refusal to work and perform a full range of duties.

"The unfortunate aspects of the approach taken by HR specialists that were revealed in this instance are frequently identified in successful unfair dismissal cases.

"... many large employers with dedicated HR specialist teams seem to be unable to avoid errors of the kind identified in this instance... I believe that HR specialists may benefit from a re-naming of their vocation. HR should stand for human relations rather than human resources. Employees are not like other resources that an employer utilises in the operation of its business. Employees are human beings, they can be easily damaged, and when faulty they should be handled with more care than machines."

Commissioner Cambridge found the dismissal of Mr Finnegan had been harsh, unjust and unreasonable.

He awarded compensation of one week's remuneration ($1250), noting it was "highly regrettable" that Komatsu had rejected an invitation for further settlement discussions.
John Finnegan v Komatsu Forklift Australia Pty Ltd (U2016/14813)

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