The Fair Work Commission (FWC) recently dealt with a case where an employee claimed unfair dismissal after his employer terminated him during his notice period. The employee argued he was performing his duties as usual and denied allegations of misconduct, while the employer maintained they were justified in ending his employment early.
The case raised significant questions about employee rights during notice periods, the difference between resignation and dismissal, and how small businesses should handle performance issues.
Background
The situation involved a head chef at a hotel who, on 2 September 2024, submitted his resignation with a notice period until 2 October 2024. Four days after receiving the resignation, the employer dismissed him with one week’s notice, claiming he was not performing his duties, had taken company property, and made threats against the business.
The employee strongly denied these allegations, explaining he was still doing his job during the notice period and had only taken his personal kitchen equipment, including knives and a mandolin. The employee argued there was no valid reason for the early termination of his employment.
When responding to the unfair dismissal claim, the employer first tried to argue they had not actually dismissed the employee but had simply shortened his notice period. The Commission rejected this argument, stating that only the employee could bring forward his own notice period, and that it was terminated on the employer’s initiative and was therefore a dismissal.
Important considerations when meeting fair dismissal requirements
A key aspect of the case involved determining the employee’s length of service. Though he started with the current employer in November 2023, the FWC found his previous service with the old business owner counted towards his employment period due to transfer of business rules.
The FWC confirmed the hotel qualified as a small business with 14 employees, including regular casual staff. This meant the Small Business Fair Dismissal Code applied, but that the employer had failed to comply with the Code’s requirements for fair dismissal.
To have reasonable grounds for believing that the conduct was sufficiently serious to justify immediate dismissal, the employer would have needed to investigate the allegations further before rejecting the employee’s denials, which it failed to do.
Dismissal during the notice period
The Commission found no substantial evidence supporting the employer’s claims about poor performance or misconduct. While the manager said she had discussed concerns about long wait times with the employee, these conversations never included any warnings about possible dismissal. While the employer put its concerns to the employee, it failed to tell him that his employment was at risk.
Taking into consideration all the circumstances, the FWC determined that the dismissal was harsh because there was no substantiated reason for it. The employer was ordered to pay compensation to cover the employee’s lost earnings plus superannuation.
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