Employers when deciding to dismiss an employee in their probationary period (or statutory minimum period of employment) are usually aware that this will protect themselves from an unfair dismissal claim. For Employers and HR managers what should also be kept in mind are other potential employment claims such as discrimination, breach of contract and in particular General Protections.
An interesting case of Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd saw an employee early in her employment made a number of complaints regarding her working conditions including:
- She was being constantly requested to perform jobs not in her job description
- Was being bullied
- The rotating roster left her feeling exhausted and also created health and safety concerns
These complaints were provided to the employer via three separate emails setting out these issues.
Less than one (1) month after her last email her employment was terminated refusing to provide a reason and saying “we are not legally obligated”.
The employee then filed a general protections claim establishing that there was an exercise of a workplace right by making the complaints, adverse action taken via dismissal and there was a causal link as the time between the dismissal and the last complaint was short considering no reason was given.
The employer then held the reverse onus of proof to disprove the workplace right and in particular that there was a casual link between the workplace right and adverse action – the employer relied upon the actual reason for her being dismissed was because she wasn’t a good fit. With a view that they did not want the employee to continue employment the HR team of the employer held the view that the protection of the probationary period would be a defence to any unfair dismissal claim. Strategically, this was an error, and the Commissioner found that the employer could not discharge their onus of proof, siding with the evidence of the employee. Putting aside some of the litigious tactical problems of the representatives of the employers in this case wherein they did not draw out evidence of the decision makers which may have made a difference in discharging the onus it is a timely reminder that terminating the employment of recent staff members should not be taken lightly.
The employee won 8 weeks pay, plus lost accrued annual leave, superannuation contributions on the 8 weeks wages and interest.
Tips for employers:
- If terminating a staff member within 6 months consider other potential claims such as a general protections claim – could a complaint be linked somehow to the dismissal?
- Consider providing reasons for the termination of employment in a letter;
- Don’t be afraid seek specialist employment law legal advice.
Written by Jonathan Mamaril
Jonathan leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, deal with problems before they fester and when action needs to be taken or a mistake is made mitigate risk and liability.