JH Briefs

Does appointing external HR advisors guarantee a proper dismissal process will be provided?

A recent decision by the Fair Work Commission says no.

In Jenny Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd [2022] FWC 2925, Commissioner Cambridge found that the Respondent (assisted by Employsure) engaged in a “litany of mistakes” throughout the dismissal process. The most severe of these errors included accepting two inconsistent statements alleging the Applicant engaged in child abuse at face value without making any enquiries into the veracity of those statements. Commission Cambridge found that the Respondent “held no more than a suspicion that something had happened” and that there were no reasonable grounds within the meaning of the small business fair dismissal code to believe the alleged abuse occurred.

The outcome of the Respondent substantiating the allegations on a ”suspicion that something happened” resulted in the Applicant’s dismissal for serious misconduct, criminal charges (which were later dismissed) and the loss of her accreditation to work with children. Commissioner Cambridge found the dismissal to be harsh, unjust and unreasonable and ordered that the Applicant receive the maximum compensation available to the Commission under the compensation cap.

The employer was again assisted and represented by Employsure at the hearing. However, Commissioner Cambridge was also very critical of how the employer conducted its defence noting at [93]:

“The employer made erroneous findings of serious misconduct that not only destroyed the applicant’s employment but caused significant personal, financial, reputational, and career damage. The only response that the employer offered for its actions was that by way of attempted reliance upon the SBFD Code, it wanted to deny the applicant any remedy for unfair dismissal. This was a case where the employer was plainly wrong, but rather than properly admitting fault, taking responsibility, and seeking to provide the applicant with some restitution, it instead attempted to inflict further harm on the applicant by seeking to have her unfair dismissal claim jurisdictionally rejected.”