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End of contract or unfair dismissal? An important Fair Work ruling concerning ECEC
Freya Lucas
Jun 09, 2021
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A recent unfair dismissal case brought to the Fair Work Commission has highlighted the importance of employers ensuring they have “a sound, defensible or well-founded reason” for an employee’s dismissal under the Fair Work Act 2009 s 394A.
The case centred on the termination of a part time early childhood educator, who had worked at the respondent’s centre since September 2019. In October 2020, the employee was terminated, a situation which the employer initially framed as a “notice of non-renewal contract”However, when the case was brought by the employee to Fair Work, the Commission determined that the employer was “prepared to throw anything further that it could to contest the application” by the time the case reached final submissions.
As the case unfolded, the employer outlined that the applicant’s dismissal was based on several concerns, including her capacity to perform an educator and receptionist role, and an incident involving the applicant’s alleged theft of the respondent’s intellectual property.
One specific allegation, Human Resources Director (HRD) reported, was that the employee had “yelled and abused” another employee in front of children, which the employee “firmly denied”.
Although the Commission agreed that a mutual argument had taken place between the two workers, it was not satisfied that this was as serious as was alleged by the respondent.
The employer also claimed that during the four week notice period, the employee had used her personal mobile phone to photograph the curriculum on display, something which the employer described as “theft of intellectual property”.
However, given the respondent never raised the allegation with the applicant before the proceedings, the Commission did not accept that it had substantially made out the alleged intellectual property theft.
The Commission noted its concerns about much of the respondent’s evidence, HRD wrote, finding that a significant amount was “created, or at the very least modified,” after the event and for the purposes of the proceedings.
While the employer's concerns about performance and conduct may well have been legitimate, the commission noted, the seriousness and significance of them “has been overstated” for the purposes of the case.
Finding that there was no valid reason for the applicant’s dismissal, together with the fact that the employer had not previously warned the employee about her work performance or alleged conduct, the Commission found the applicant’s dismissal was unfair. It ordered compensation of $2,474.20 to the applicant.
To read the original coverage of this story, see here.
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