In a recent case, Harley v Aristocrat Technologies Australia Pty Ltd [2010] Fair Work Australia (FWA) ruled an employer guilty of unfair dismissal after it found that the employee in question had actually been constructively dismissed, or in other words, forced to resign.

The employee resigned from his job in late 2009 after the company sent him a letter asking him to prove why he should not be dismissed. According the company, the employee had a poor sales performance record and they had received a number of customer complaints against him.

However, after resigning, the employee lodged an unfair dismissal claim, claiming that he had actually been forced to resign due to the company’s lack of action over a bullying and harassment complaint he made about their State Manager.

FWA found that the company had failed to deal properly with the employee’s harassment claims and did not conduct any real investigation into them, even after it had said it would in its letter to the employee.

After determining that the performance issues did not warrant dismissal in light of the harassment the employee had to endure, FWA found in favour of the employee.

So what can you learn from this case?

In short, you need to make sure you have a process in place to deal with employee complaints and ensure that you follow it EVERY TIME. You can’t just leave something and expect the problem to go away on its own.

You should also make sure that the appropriate people in your organisation (i.e. HR) know the process and understand how to conduct it.

For more information on how to properly manage an employee’s performance issues, just refer to chapter H2 How to Manage Employee Performance.

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Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook