Dismissing a employee can it be outsourced?
When I reading a recent unfair dismissal case, where an employee was dismissed by the police, I thought of the George Clooney movie “up in the air“. This is where a employee who worked a consultancy firm specializing in employment-termination assistance. His job was basically to fly around the U.S. sacking employees or making them redundant on behalf of companies. Its a great movie, the way they terminate employees in the USA is harsh compare to Australia. Thank god for the Fair work Australia regime to keep everybody in line. So Dismissing a employee can it be outsourced? got me thinking how much of it goes on in Australia?
I have come across this scenario before, where unions have sacked a member on behalf of the company, (usually in circumstances the employer is scared of the employee). Workers Compensation insurance companies case mangers tell the client the company is not taking them back, that they no longer work there. A outplacement company contacts an employee to tell them their dismissed and their job is to get you another one. So lets look at this particular case and see what happened.
Cannot delegate the task of dismissing an employee
An employer cannot delegate the task of terminating an employee to a third party. The Fair Work Commission (FWC) has ruled in a recent case. It involved a Victorian factory worker who after allegedly grabbing his boss by the throat received notice of his dismissal from the police, rather than his employer.
The ruling meant that the worker, who had a history of workplace misbehavior. Was cleared to pursue a general protections claim against his employer. Let’s look at the events leading up to the employee’s final fiery confrontation with his boss. Further why the Fair work came to rule in his favor.
Bullying, sexual harassment and drugs: The events that led to the factory worker’s dismissal
Callum Reynolds had been employed by Concrete Sleepers Victoria since August 2021. But it wasn’t long before the relationship with his employer soured. In evidence given to the Fair work, Concrete Sleepers alleged that Mr Reynolds had engaged in a long list of unacceptable workplace behaviors. This included bullying, taking drugs, destroying company property, lying about hours worked. Also sexual harassment, driving company vehicles under the influence and multiple instances of workplace abandonment, amongst other misdeeds.
In August 2021, Concrete Sleepers had issued a verbal warning to Mr Reynolds, but his misbehavior continued. On 3 November, he was brought into a meeting with his managers. They then advised Mr Reynolds to take three weeks annual leave as an alternative to dismissing him. He was told to take the leave to “better set yourself straight mentally rather than give you an immediate notice of termination.”
The employee is dismissed after a fiery physical confrontation
Despite agreeing to take three weeks leave, Mr Reynolds turned up to the Concrete Sleepers factory on 5 November. Initially, his presence didn’t cause any disturbance. While seated in his car, Mr Reynolds spoke amicably with a Production Manager. But that all changed when Concrete Sleepers CEO Ryan Staples approached, at which point Mr Reynolds started his engine.
The CEO asked Mr Reynolds why he was at work, to which the latter replied that he was leaving, as there was no work available. But as Mr Reynolds tried to leave, Mr Staples insisted that he stay so he could take a drug test. Mr Reynolds refused to take the drug test and tried to leave the site in his car. But as he was doing so, Mr Staples drove his car across the driveway to prevent his employee from leaving.
It was at this point that things got ugly. Both men got out of their vehicles. Then Mr Reynolds stormed over to his boss, before grabbing him by the throat. While attempting to push him up against a timber wall, Mr Reynolds said, “See I’ve still got you with one f**ken hand”. The Production Manager subsequently raced in and attempted to restrain Mr Reynolds, and later called the police.
The employee is told he is dismissed by the police
When the police arrived, they questioned Mr Staples and then Mr Reynolds separately. The police escorted the latter to the entrance of the factory. One of the police officers then passed on a message to Mr Reynolds that Concrete Sleepers would later claim amounted to a dismissal. “Your boss has asked you to leave the premises immediately. Tto collect your personal belongings and you are not to return,” said the officer. “We will escort you to collect your belongings.”
Later, as Mr Reynolds passed by the Production Manager and another colleague, he said “Well that’s that isn’t it. There’s no coming back from that!” The Production Manager replied, “Good luck.”
The factory worker receives a written dismissal a few days later
Three days later on November 8, Mr Reynolds returned to the factory with his wife and presented a certificate of capacity to Mr Staples. What his employer did next would have a huge bearing on this case. That evening, Concrete Sleepers emailed Mr Reynolds his Notice of Termination. In it, the company stated that his returning to work on 5 November caused a serious disturbance to employees.
“Your arrival and presence at the workplace resulted in causing panic amongst our staff members to the extent that 90% of our workforce had to leave for their own safety out of fear and some of them out of anger resulting from your actions,” Concrete Sleepers said in the termination email.
“Your disruptive menace, verbal and physical attacks have impacted greatly on my business; therefore I wish to advise that you are now officially terminated from Concrete Sleepers Victoria Pty Ltd, effective immediately.”
The employee lodges a general protections dismissal with the FWC
With general protections dismissal claims, an employee must submit their application to the FWC within 21 days. The date on which Mr Reynolds lodged his application – 29 November – is at the crux of this case.
Concrete Sleepers claimed that Mr Reynolds was dismissed on November 5, when he was told by the police to “collect your personal belongings” and “not to return” to the factory. If this was true, Mr Reynolds would have submitted his application three days late, invalidating his general protections claim. Mr Reynolds, however, claimed that he was in fact dismissed on November 8, when he received his Notice of Termination.
On which date was the employee dismissed? The FWC delivers its ruling.
During the Fair work hearing, Deputy President Bryce Cross rejected Concrete Sleepers’ claim that Mr Reynolds had been dismissed on November 5.
“I reject [Concrete Sleepers’] submission that the [Mr Reynolds] should have divined his dismissal on 5 November 2021 from the circumstances identified,” said Deputy President Cross.
This judgement stemmed from several factors. Deputy President Cross found that Mr Reynolds had been involved in some “volatile events” that had previously not resulted in his dismissal”. And he asserted that while the incident on 5 November involved an escalation of volatility, it didn’t mean Mr Reynolds “would understand he was dismissed.”
“I do not accept the proposition that an employer can delegate the task of advising an employee he is dismissed to the police,” continued Deputy President Cross, adding that the Production Manager also “made no comments consistent with advising [Mr Reynolds] he was dismissed.”
The Deputy President also held that the Notice of Termination emailed to Mr Reynolds three days later “clearly stated the dismissal is official ‘now’ and ‘effective immediately.’” He ruled that it provided “no basis” for a finding that it was written confirmation of an earlier dismissal.
An employee must be informed of their dismissal in writing
This case teaches us that no matter how bad an employee’s behaviour, an employer can’t assume that they know they’ve been dismissed for it. Also, the employer can’t delegate the task of informing the employee of their dismissal to any third party. No matter if it’s the police, a union representative or a family member of the employee.
An employer must always follow proper protocol when exiting an employee. The FWC states that an employer must provide an employee with written notice on the day of termination when ending their employment. The written notice must either be delivered to the employee in person, by leaving it at or sending it by pre-paid post to their last known address. Or if the employee consents, sending it electronically via email or text message.
Dismissing a employee can it be outsourced? Have you been mistreated by your employer?
Employers sometimes want the glory, the big bucks, then don’t want to do the dirty work. Everybody is entitled to a fair go, procedural fairness. If your employer hasn’t followed proper protocol in issuing your Notice of Termination or Dismissal. Or if you feel that you’ve been unfairly dismissed, call us immediately.
A Whole New Approach can help. For the last 20 years, our team of employment experts have assisted thousands of people like you to successfully gain compensation from the FWC. We are proud of our staff and the outcomes they gain for our clients. Probation period issues, workers rights, abandonment of employment
Call us on 1800 333 666 for a free, confidential discussion to discover how we can simplify the process of gaining compensation for you.