The he said, she said of disciplinary action

02 November, 2015 by
Restaurant & Catering Australia

Finding a balance between procedural fairness, and necessary disciplinary action can at times be a difficult process. Business owners can be reluctant to take reasonable and necessary action due to a fear that doing so can leave them liable in future action.

A recent decision by Senior Deputy President Richards in the Fair Work Commission has bought attention to some of the key factors taken into consideration in an unfair dismissal proceeding. Ms Palak Rani v Limitless Ventures Toscas Pty Ltd T/A Toscanis Mackay [2015] FWC 6429 examined the reasons for dismissal, and specifically whether dismissal was harsh, unjust and unreasonable. Ms. Rani was a restaurant manager for Toscanis and had been for around 18 months, before her employment was terminated. Termination is the most severe form of discipline, and as a result the processes leading up to a decision to dismiss an employee are heavily scrutinised.

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Ms. Rani was dismissed due to “being late to work on numerous occasions”, which was of more significant concern given her position as manager which required her to open the business; and “(failing) to provide a weekly stock take (reports) as requested by the owner of the franchise.” “The stock take issue was considered by the employer to be an important concern as its franchise agreement required the necessary reconciliations to be completed on a weekly basis on a Sunday (so that comparisons can be made across the franchisees). The employer faced breach notices for non-compliance in this respect with the franchisor”.

Toscanis argued that Ms. Rani had engaged in serious misconduct and terminated her without notice. In addition to the stock take issues and lateness, the employer referred to Ms Rani’s comments on Facebook, in particular the ‘liking’ of a series of complaints on the business’ Facebook page. Ms. Rani claimed that she had never been warned about her behaviour or performance. Whilst acknowledging that weekly stock takes were a “significant duty”, she maintained that all stock takes were completed and that she had always opened the shop on time.

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As part of the unfair dismissal proceedings, Ms Rani called many witnesses. Most gave evidence in support of Ms Rani’s character, but through cross examination it was discovered that many were unable to provide evidence that she had either done the required weekly stock takes, or opened the business at the scheduled opening time. This meant that despite fellow staff providing support to Ms Rani, little weight was given to their individual evidence. Conversely, witnesses appearing for the employer gave evidence to the contrary demonstrating that she had in fact been spoken to about many of the inadequacies present in her work, and her attitude was not always professional.

When weighing up all of the evidence presented by both parties, SDP Richards acknowledged the difficulty in “interpreting the various claims and counter claims” present in the two evidentiary cases.  In a thorough decision, SDP Richards provided reasons for the varying weight given to each piece of evidence. In addition, SDP Richards assessed all of the evidence against the criteria set out in the Fair Work Act 2009. Interestingly, Ms. Rani’s Facebook ‘likes’ were not considered relevant. SDP Richards could not be satisfied that liking a complaint constituted a will to damage her employer’s corporate reputation. It was found that despite some procedural inadequacies, “The employer had a sound, defensible and reasonable basis – and thus a valid reason – for the dismissal of Ms Rani from her employment as a restaurant manager. Ms Rani could not be relied upon to perform critical roles as a manager and her conduct had been less on occasions than what might reasonably be expected by her employer.”

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Cases such as this demonstrate that procedural fairness is a factor taken into account by the Fair Work Commission but disciplinary action will be upheld where the employer can substantiate valid reasons for termination.