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“Is it too late now to say sorry…”

The Fair Work Commission has recently highlighted the importance of employers providing employees with both a valid reason for dismissal; and procedural fairness throughout the dismissal process. In Stephen Quigley v Belfast Sinks.com.au Pty Ltd [2020] FWC 43, Mr Quigley’s relationship with his employer, Belfast Sinks.com.au Pty Ltd (“Belfast Sinks”) deteriorated over a dispute about annual leave.

On 8 February 2019, Mr Quigley requested 4 days annual leave to coincide with a visit from his parents who lived overseas. Mr Shaw, the director of Belfast Sinks, rejected Mr Quigley’s request on the basis that this would leave the business short staffed. Mr Quigley did not accept Mr Shaw’s rejection of his request. On 19 February 2019, there were several telephone conversations between Mr Quigley and Mr Shaw which ended with Mr Quigley speaking to Mr Shaw in an inappropriate manner, hanging up on Mr Shaw on more than one occasion and venting to colleagues about Mr Shaw. Mr Shaw gave Mr Quigley a verbal warning in relation to his unacceptable conduct. However, this warning was considered insufficient as it did not state the consequences to Mr Quigley in the event that his behaviour did not improve.

The dispute between Mr Quigley and Mr Shaw in relation to the annual leave request continued until 21 February 2019 when Mr Shaw offered to allow Mr Quigley to take authorised unpaid leave. On the same day, Mr Shaw told Mr Quigley that he wished to have a meeting with him upon his return from leave.

On 1 March 2019, Mr Quigley returned to the office following his unpaid leave and attended a meeting with Mr Shaw. Mr Shaw told the Fair Work Commission that the purpose of the meeting was to determine if the relationship between him and Mr Quigley could be salvaged and to see if Mr Quigley had any remorse for his actions. Mr Shaw conceded that he did not inform Mr Quigley of the purpose or objective of the meeting. According to Mr Shaw, Mr Quigley became animated during the meeting and started to shout at him. Mr Shaw then suggested that they should “part as gentlemen and acknowledge this relationship was over”.

On 12 March 2019, Mr Quigley received an email from Mr Shaw containing a letter of termination. The letter stated that the reasons for termination included misconduct, insubordination, general misconduct and gross misconduct. 

The Fair Work Commission found that reason for Mr Quigley’s termination was that Mr Shaw was personally affronted by Mr Quigley’s lack of contrition and gratitude for him agreeing to Mr Quigley taking unpaid leave in the meeting on 1 March 2019; and because he decided Mr Quigley was not committed to the business. The Fair Work Commission held that this was not a valid reason for dismissal as Mr Quigley was not made aware that his continued employment was conditional on the demonstration of contrition and gratitude.

The Fair Work Commission considered that Mr Quigley was not afforded any semblance of procedural fairness when it came to the meeting on 1 March 2019. While Mr Shaw may have had an expectation that Mr Quigley would conduct himself differently in the meeting and demonstrate contrition, the purpose of the meeting was never made clear to Mr Quigley. Further, Mr Shaw made assumptions about Mr Quigley’s commitment to the business without giving him the opportunity to respond.

Lessons from the case

1. Communication is key!

Interestingly, the Fair Work Commission noted in this judgment that:

“Mr Quigley’s conduct in hanging up the phone on Mr Shaw twice, speaking to Mr Shaw in the manner that he did, instructing Mr Shaw that he was not flexible with annual leave dates (despite having only given three weeks’ notice of the request) and thereafter venting to a colleague within the workplace to the point where he was instructed by two other staff members to ‘calm down’, constitutes workplace behaviour that is at odds with any generally-recognised notion of what is acceptable”.

It was further noted that:

“Mr Quigley demonstrated an unwavering resolve that his request for annual leave was reasonable and he could not be dissuaded otherwise; because of this belief he engaged in conduct which was impulsive and puerile. That conduct when considered individually may have been considered minor indiscretions and on their own, an insufficient basis to constitute a valid reason for dismissal. However, each of the examples above cannot be disaggregated from a consistent pattern of behaviour which was confrontationist, argumentative and insubordinate”.

These comments from the Fair Work Commission indicate that had Mr Shaw properly communicated to Mr Quigley at the appropriate time (both verbally and in writing) that his behaviour was unacceptable, that his employment may be terminated if the behaviour continued, Mr Shaw may have had a valid reason to terminate Mr Quigley’s employment if such behaviour continued.

2. Have a paper trail

As outlined above, the Fair Work Commission found that Mr Quigley was not afforded any semblance of procedural fairness when it came to the meeting on 1 March 2019. Had Mr Shaw issued Mr Quigley with a written request to attend the meeting on 1 March 2019, setting out the purpose of the meeting; his concerns in relation to whether Mr Quigley was committed to the business; and giving Mr Quigley the opportunity to respond to his concerns, Belfast Sinks would have been better placed to argue that Mr Quigley was afforded an opportunity to respond to Mr Shaw’s concerns prior to termination and thus that he had been afforded procedural fairness.

3. Seek advice

The Fair Work Commission noted that Belfast Sinks was a small business employer without a dedicated human resources department; and that the evidence showed that Mr Shaw had limited expertise in managing employees or understanding what was required by him under the Fair Work Act 2009. Nevertheless, Deputy President Beaumont expressed the view that if a business decides to employ workers, then this undoubtedly is coupled with a responsibility to know what is required by law. This case demonstrates that arguments to the effect that an employer is a small business without a specialised human resources function will be unpersuasive in circumstances where there has been a significant denial of procedural fairness to an employee.

Liability limited by a scheme approved under Professional Standards Legislation

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