Don’t dismiss correct dismissal procedure – lessons learned after termination found unfairNovember 17, 2022
Failures to check the correct steps before terminating an employee have caused expensive legal bills and a mixed result for a Melbourne company, as well as serving as a reminder for the employer – while you may have a valid reason for dismissing an employee, caution must be taken so the dismissal isn’t found to be procedurally unfair.
The reminder comes after the Fair Work Commission (FWC) ruled at the start of this year on Mr Simon Ronchi v Johns Lyng Group  FWC 326.
It was on 27 July 2021 that commercial building services company Johns Lyng Group terminated employee Simon Ronchi for sending inappropriate text messages to his manager, engaging in work which conflicted with his duties under his employment contract and neglecting his duties.
Before deciding to terminate Ronchi’s employment, on 27 July 2021, Ronchi was invited to a meeting to discuss “some issues and concerns”. The meeting quickly escalated with Ronchi becoming defensive and aggressive. During the meeting, Ronchi also made derogatory comments about his employer insinuating improper business practices were common and known.
Ronchi was dismissed on the spot during the meeting and paid two weeks’ salary in lieu of notice. Ronchi subsequently lodged an unfair dismissal application with the Fair Work Commission. The Commission found that while there was a valid reason for Ronchi’s termination, the employer had failed to affect the termination in a procedurally fair manner. Despite inviting Ronchi to a meeting to discuss the “issues and concerns” the Commission was not satisfied that Ronchi was provided with a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him, particularly in light of how the meeting escalated. The Commission stated that given the seriousness of the allegations and the breadth of evidence against him, Ronchi should have been provided with an opportunity to show cause why his employment should not be terminated instead of the employer allowing the meeting to escalate into a dismissal on the spot.
As a result, the Commission found that the termination of Ronchi’s employment was procedurally unfair and ordered the employer to pay Ronchi compensation in the amount of one week’s pay. The Commission said that this was equivalent to the time Ronchi would have likely remained in employment had the meeting on 27 July 2021 not escalated into a sudden dismissal.
Ronchi appealed the decision, however, his appeal was dismissed.
What can we learn?
Employers should always remember to engage in a robust and procedurally fair process when deciding to terminate an employee’s employment, even in circumstances where the reason for the employee’s termination is black and white.
The seriousness of an employee’s conduct, or performance, will not prove to be sufficient justification for a lack of procedural fairness.
Irrespective of whether there are valid grounds for dismissal, failure to adhere to adequate processes and procedures can potentially result in an employer’s losing an unfair dismissal claim.
The Telephone Advisory Service at HR Assured (a company within FCB) was set up to provide real human advice, available 24/7. On a daily basis, the Telephone Advisory Service handles queries from employers who feel they have every reason to sack somebody – but want to check that any termination is handled in a way consistent with employment law.
Amanda Curatore is a qualified Solicitor at FCB Workplace Law. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk.
Michael Botur is a Copywriter and works for FCB. Based in sunny Northland, New Zealand, Michael’s passionate about shaping words to give audiences persuasive stories – sometimes for sales and marketing, other times for journalism, art or entertainment.