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IR Update: “Smart Arse” sacked

October 27, 2015

An employer has been unable to successfully establish that they dismissed a client analyst as a result of poor performance.

Employment of Mr Anderson with BNP was subject to a three month probationary period. Just days prior to his termination, Mr Anderson was confronted by his supervisor in earshot of other employees on 19 March 2014 about absences from his desk. Following this, Mr Anderson participated in a meeting with his supervisor and the HR staff to discuss his future with BNP on 25 March 2014. In this meeting, he raised two concerns: critiques of his supervisor and issues with the organisation’s workplace culture. Unaware of Mr Anderson’s concern, his direct supervisor criticised his performance and offered an extension to his probationary period. The following day, Mr Anderson was dismissed and paid a week’s wages in lieu of notice.

Despite the employer’s argument that Mr Anderson’s complaint did not constitute a formal complaint in the meeting on 25 March, Judge Driver said he had “no doubt” the analyst made a complaint for the purposes s 341(c)(ii) of the Fair Work Act 2009 (Cth). Although Mr Anderson had not followed formal channels, this did not mean the complaint had been abandoned.

Judge Driver formed the opinion that the Head of Client Management was the effective decision maker, but the decision was informed by perspectives of Mr Anderson’s supervisor and the HR Manager who were eager to get rid of Mr Anderson before he could lawfully make an unfair dismissal claim.

Although Judge Driver agreed with descriptions of the analyst as a ‘smart arse’, he commented that this employee’s complaints should not have been ‘so lightly dismissed’ and his dismissal was ‘certainly not an appropriate response’.

Click here to view the full case.

Lessons for Employers:

  • Employees within their minimum employment period still have jurisdiction to make adverse action claims
  • Employers must take adequate steps to address workplace complaints
  • The reason for termination of employment must be genuine and well-founded

If you your business need assistance with a workplace matter, contact the NRA’s Employment Team on 1800 RETAIL (738 245).

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