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Lack of IR knowledge no excuse for ‘disgraceful’ dismissal: FWC

By Portner Press on October 14th, 2019
  1. Bullying, Harassment & Discrimination
  2. Discrimination in the workplace

The Fair Work Commission (FWC) has referred an unfair dismissal case to other “relevant agencies” to investigate possible breaches of anti-discrimination laws, after it found the sacking was likely to be racially motivated.

Jianbin ‘Eddie’ Wang, the current owner of Foodworks Ashmont in Wagga Wagga, summarily dismissed a long-serving shop assistant by text message when she missed one shift.

The 66-year-old casual employee, who had worked at the same store for more than 20 years under various owners, had worked for Mr Wang on a regular basis for three years.

Mr Wang’s text message read:

“This is eddie, I decide [sic] to give job [sic] to someone else but I will let u [sic] know if I need to to [sic] work, sorry for that”

He did not return the employee’s call when she attempted to call him back.

The employee then lodged an unfair dismissal claim.

Mr Wang submitted to the FWC that “[The employee’s] no reason [sic] absent made me make a decision to give her position to someone else at once, which can make sure the shop can be [sic] running”.

Mr Wang maintained that the dismissal complied with the Small Business Fair Dismissal Code as the employee had also engaged in misconduct by way of ‘money shortages’ and ‘absences’ from work.

He provided seven cash register receipts spanning a five month period which showed alleged money shortages between $5.10 and $30.70.

However, the employee submitted she had not received any disciplinary action or warning of any misconduct during her current employment and was not told why she had been dismissed.

The employee also provided the FWC with a reference letter she received from the store manager after the dismissal. The letter described the employee as “extremely organised, reliable and working hard [sic]” and gave her the “highest recommendation”.

“He [Mr Wang] has been trying to get rid of me (I’m not [Chinese]),” the employee submitted to the FWC.

But Deputy President Peter Sams found a “general lack of evidence from either party” regarding the reasons for the dismissal and decided to conduct his own inquiry “as to the substance of this claim”.

Asian staff preferred

Deputy President Sams found a number of job advertisements Mr Wang had previously posted on different Chinese Australian job forums.

These included:

“IGA supermarket in  Wagga Wagga need new staff, must be  reliable, speak English, work long  term, daily jobs  including deli meat, check out and organizing self. Asian Lady preferred…” [emphasis added]

“wagga supermarket looking for  new staff, daily work including deli meat and check out, no experience required but must  speak English well and reliable, please contact [Mr Wang’s mobile number provided], asian staff preferred. [emphasis added]

“wagga IGA supermarket need new staff to join:

Requirements:

good English speaking,  reliable, no experience required, must have PR, please contact [Mr Wang’s mobile number provided]  (eddie)  if  you  are interested in, more prefer oversea [sic] people.” [emphasis added]

‘Complete disregard’ for natural justice

Deputy President Sams found no evidence that Mr Wang had complied with the Small Business Fair Dismissal Code.

“Even if I accept that Mr Wang was concerned as to [the employee’s] non-attendance on one day of employment, and was responsible for a number of minor cash shortages in the cash registers, in no way could such behaviour be reasonably considered to have constituted serious misconduct,” Deputy President Sams said.

“Further, there is not a jot of evidence:

  • that he had ever raised these concerns with [the employee] before [the dismissal];
  • of  any investigation  having been conducted into  the  alleged misconduct of [the employee]; or
  • that he had told her that her job was at risk for these, or any other reasons.

“These are all fundamental and serious breaches of the Code.

“Significantly, [the employee] was not given any opportunity to respond at all to what was said to be the two reasons for her dismissal.

“In my view … Mr Wang ‘waited’ for an opportunity which he believed would ‘justify’ terminating the employment of [the employee].

“He was mistaken.

“[Mr Wang’s] complete disregard in affording [the employee] any natural justice when dismissing her, was astounding for its brazen and appallingly perfunctory unfairness.

“[I]t must be  bluntly  said that  no employer with any sense of common decency,  would  have effected a  dismissal in  the  hopelessly  unfair  and perfunctory manner admitted to in  this case.

“It was disgraceful and grossly unfair.

“[Mr Wang’s] approach in denying [the employee] proper and fair procedures cannot be put down to naivety or ignorance.

“It was deliberate and calculated. The size of the employer’s business and lack of industrial relations expertise, simply does not ‘wash’, as any excuse for the lack of any fair procedure in this case.”

Deputy President Sams found the employee’s dismissal harsh, unjust and unreasonable and directed both parties to make submissions about compensation.

Potential anti-discrimination law breaches to be investigated

Deputy President Sams believed Mr Wang’s real motive for dismissing the employee was his preference to hire Asian-speaking staff.

“I am bound to observe that, prima facie, Mr Wang’s conduct constituted a breach of anti-discrimination laws and/or [the employee’s] dismissal was for an unlawful reason, pursuant to s 772(f) of the Act,” he said.

“In either case, Mr Wang may find himself subject to other civil proceedings, for which civil penalties might apply.

“As the evidence has disclosed potential breaches of anti-discrimination and industrial relations legislation, I am referring this decision and the file to the General Manager of the Commission for consideration as to whether this matter should be referred to relevant agencies to investigate potential breaches of State or Commonwealth law.”

The Fair Work Act applies to every employer

And even an unintentional breach can be costly.

Make sure your organisation is doing the right thing by reviewing the Employment Law Practical Handbook on Portner Digital.

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