Lining Systems Company Forced to Line Pockets of Unfairly Dismissed Employee

Total Lining Systems Pty Ltd has found itself on the receiving end of an unfair dismissal finding at the Fair Work Commission (FWC).

Background

The business employed Mr Knight (the Applicant), who on 18 June 2018 resigned from his position claiming he was forced to do so owing to a hostile work environment. The following day the Applicant received a letter from the employer’s director and secretary, Mr Short, which stated that he was dismissed without notice. The letter contained a list of eights aspects of the Applicant’s conduct which caused the decision. Mr Short claimed that the behaviour of the Applicant was serious enough to warrant summary dismissal (dismissal without notice), although the FWC took a different view.

What the FWC found

Commissioner Cambridge of the FWC had to consider two issues in the matter. Firstly, it was necessary to determine whether the Applicant’s claim that he was forced to resign was correct. Secondly, Commissioner Cambridge had to consider whether or not the employer had crossed the line by dismissing the Applicant summarily.

Commissioner Cambridge examined the evidence regarding the alleged forced resignation (also known as a ‘constructive dismissal’). Evidence showed that the Applicant had approached Mr Short claiming he had developed stress and anxiety in the course of his work. Mr Short responded by suggesting that he take paid time off and offered him part time work to help with the stress. The Commission found that this, among other relevant facts, did not substantiate the claim that Mr Short had forced the Applicant to resign due to bullying in the workplace. The Commissioner therefore ruled there was no forced resignation.

On the question of whether the Applicant’s summary dismissal by the employer was unfair, the employer argued the dismissal was consistent with the Small Business Fair Dismissal Code.  But, having considered the grounds relied on to dismiss the Applicant, the Commissioner found as follows:

Upon examination, the eight identified issues of purported misconduct of the applicant were little more than a contrivance that was developed as a response to the applicant’s resignation. The employer contrived these issues in an attempt to avoid properly finalising the outstanding entitlements that were owed to the applicant upon the provision of his voluntary resignation.

Commissioner Cambridge held the dismissal was not consistent with the Small Business Fair Dismissal Code and without a valid reason.  The dismissal was therefore unfair.  In terms of remedy, Commissioner Cambridge determined that the Applicant would have only continued in the employment for a further period of two weeks in accordance with his resignation. As such,  payment of two weeks’ wages ($4,615.00) was ordered to be made to the Applicant within 14 days (from January 15).

Knight v Total Lining Systems Pty Ltd [2019] FWC 28

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