Full bench awards 'out of depth' employee $6000

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Full bench awards 'out of depth' employee $6000

A full bench has awarded a childcare worker $6000 compensation after finding the original decision didn't account for financial losses she suffered.

A woman who was found to be unfairly dismissed initially received no compensation because the Fair Work Commission determined that she was not competent enough to perform the job. When the woman appealed against the ruling, a full bench awarded her more than $6000, finding that the financial loss she suffered afterwards should have been taken into account. 

Facts of case


The woman was promoted to a management role at a child care centre. She held the position for about three years but was dismissed after some incidents had occurred. (see previous article on the original decision).

The FWC found that the employer had a valid reason for dismissing her, but that dismissal in the circumstances was unfair and handled in a procedurally unfair manner. The employee was unable to perform the job with sufficient competence, however this was partly due to the employer not providing sufficient training and support after she was promoted, and failing to make all her responsibilities clear to her.
 
However, because the employee was unable to handle the role, her continued employment prospects with the employer were limited, therefore the FWC declined to award her any financial compensation. The employee appealed against that decision.

Decision


A full bench upheld the appeal and awarded compensation of $6045.

It found that the FWC had erred in the following ways:
  • It failed to take into account the financial loss she had suffered by being unemployed after dismissal and then only being able to secure part-time and casual work for several months until obtaining another full-time job about seven months after dismissal.
  • It wrongly concluded that some of the job performance oversights raised by the employer were caused by her giving priority to family issues over her employment requirements.
The  full bench estimated that she would have remained employed for a further 10 weeks, given the evidence of her lack of competency. It commented that she might have received a final warning at the time instead of being dismissed. It then made deductions for the work income she had earned during the first 10 weeks after dismissal, and for the pay in lieu of notice she had received.

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