Post-dismissal antics crush compo prospects

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Post-dismissal antics crush compo prospects

A tribunal has refused to compensate a group of executives who were unfairly dismissed, saying their misconduct after termination was behaviour that could not be condoned.

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A tribunal has refused to compensate a group of executives who were unfairly dismissed, saying their misconduct after termination was behaviour that could not be condoned.

Background


Gippsland & East Gippsland Aboriginal Co-Operative Ltd (GEGAC) dismissed its executive management team in July 2018. The team was made up of five executives.

The Fair Work Commission found there was a valid reason for dismissing three of the managers, but the "somewhat weak" reasons and a lack of procedural fairness made the dismissals harsh, unjust or unreasonable.

In relation to the other two managers, the commission found there was no valid reason for termination hence the dismissals were also unfair.

Remedy


The managers initially sought reinstatement but amended this to compensation during proceedings.

However, the commission refused to award compensation, given the managers' misconduct after their termination.

This included: reinstating their IT and security access, removing the board's access, contacting banks, sending correspondence to stakeholders, continuing salary payments to themselves and not processing terminations, padlocking the boardroom, standing down the interim CEO, changing locks, directions to staff that they remained in charge, and the closure of GEGAC on certain days.

One of the managers also gave evidence about the insertion of additional involuntary termination clauses in the applicants' contracts for $100,000.

The group submitted that while "some of the behaviour was inappropriate, it would never have occurred but for the unfair dismissals by the respondent, particularly the procedural unfairness applied".

Deputy president Hamilton agreed the dismissals were unfair, but said "the attempt to then improperly and without authorisation gain significant financial advantage from GEGAC funds is particularly inappropriate, and I refuse to condone such behaviour.

"Some of the other actions, including directions regarding bank accounts and cutting off board access, are also inappropriate."

He found the applicants had acted 'in cahoots', were all 'equally culpable' and had shown limited contrition or remorse for their actions.

He said not awarding compensation was "a rare decision to make" but "justified in the unusual circumstances of this case".

The deputy president said a finding of unfair dismissal was a sufficient remedy.

Read the judgment


Anthony Finn, Brianna Ellis, Lee Harvey, Alice, Patten and Uwe Oestmann v Gippsland & East Gippsland Aboriginal Co-Operative Ltd (U2018/7312; U2018/7313; U2018/7325; U2018/7326; U2018/7327)

 
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