Probation misstep means dismissal unfair

By Andrew Hobbs on October 6th, 2017
  1. Termination of Employment
  2. Unfair Dismissal

A COOK was wrongfully dismissed after being denied “procedural fairness” by managers who mistakenly thought she was still in her probationary period, the Fair Work Commission has found.

The cook was first placed with the Tangentyere Council Aboriginal Corporation (TCAC) as part of a work for the dole program on 4 February 2016 and was hired on a casual basis from 11 April that year.

Her employment was upgraded to a permanent part-time position almost three months later on 4 July, before she was dismissed on 28 November in a meeting with direct supervisors and the TCAC chief operating officer (COO) – less than the six months required for her to be able to make an unfair dismissal claim.

However, Commissioner Michelle Bissett found that the cook’s period of casual employment was performed on a regular and systemic basis – allowing it to be counted towards her total period of employment by the company.

In turn, this extended her period of employment to more than six months, which entitled her to protection under unfair dismissal legislation.

“I accept that [the COO] thought he was terminating [the cook’s] employment during her probationary period and he did this because she was ‘not a good fit’,” Commissioner Bissett said.

“It may well be that if he had known that she was able to take action for relief from unfair dismissal  – that she was effectively through her ‘probation period’ – his considerations would have been different in that he would have considered in greater detail the extent of any misconduct and if it warranted dismissal.”

The reasons presented for the decision to dismiss the cook were an inability on her part to take direction from her supervisors on the logistics of the kitchen and changes to the menu for the food prepared there.

“While her conduct warranted some remedial action by her employer it do not provide, on balance, a valid reason for dismissal,” Commissioner Bissett said.

She found the dismissal was unfair and ordered TCAC pay the cook $2591.74 and 9.5 per cent superannuation.

Making the decision to dismiss

Choosing to dismiss an employee can be a difficult decision – and can expose you to legal risk – which is why it is critical to know that any decision to dismiss an employee is a lawful one.

The 57-page Managing Lawful Dismissal eBook, written by employment law expert Charles Power, guides you through what you must consider before dismissing an employee.

Topics covered in the eBook include:

  • What makes dismissal unlawful.
  • Management procedures for dismissal.
  • Alternatives to dismissal.
  • Notice and termination pay requirements.

Don’t make a decision without having first consulted the Managing Lawful Dismissal eBook – it can help you to avoid costly exposure to charges of unfair dismissal. Get your copy today.

Related Articles: