Dismissal letters must be timely

THE Australian Industrial Relations Commission in a recent decision has sent a timely warning to employers not to delay in advising the employee once the decision to dismiss has been made.

The employee, a senior computer operator, had received a number of previous warnings from his employer about his inappropriate behaviour and unprofessional language including swearing and acting in a threatening and aggressive manner towards senior management.

This culminated in a meeting on October 8 2003 where the employee again became loud and aggressive, walked in and out of the meeting room several times and made unprofessional comments about management and the organisation.  At the end of the meeting the employer concluded that it could not allow the employee to go back into the working environment in his present state and told him to go home.

A second meeting between senior management and the employee was held five days later.  The employer contended that the meeting was to discuss the employee’s threatening and aggressive behaviour in the October 8 meeting.  Further, that the employee was advised that his dismissal was a possibility.  Following the meeting, the decision was made to dismiss the employee.

The employer subsequently prepared a letter of termination stating the employee would be dismissed effective October 15.  The letter was dated October 17.  The employee argued that he did not receive the letter of termination until the evening of October 22 and that he had found out that he had been dismissed through office rumour prior to receiving the letter of termination. 

The employee filed a claim for unfair dismissal against the employer, alleging he had been victimised and denied the opportunity to respond to the allegations against him.

The commission found, when taking into account all of the events and the history of inappropriate behavior by the employee, that there was a valid reason for the dismissal.

However, when the commission considered the issue of whether the termination was harsh, unjust or unreasonable, it found that the employer was a large organisation with a dedicated human resources department and that the delay in advising the employee of the decision to terminate his employment was inexcusable and ‘a cause of great concern’.  The situation was further exacerbated by the fact that the employee had heard rumours about his dismissal from his former work colleagues before the employer officially informed him of his dismissal.

The commissioner went on to comment that a letter of dismissal was perhaps the most important communication an employee might ever receive from his employer and suggested that the use of a courier rather than the postal system would have been advisable in the circumstances.

The Commissioner found that whatever the reason, there was no excuse for such a delay, especially in a large organisation with a dedicated Human Resources Department. It was simply not satisfactory that the employee should hear of his dismissal through office rumour before being advised by the employer.

For those reasons the commission found while there was a valid reason for the dismissal the manner in which it was carried out was patently harsh. It awarded the employee $11,488 by way of compensation for lost earnings up to the date of the hearing.

Carla Paratore, solicitor, 9288 6940

Michael Jensen, associate, 9288 6944

Phillips Fox