Lawyer highlights summary dismissal points

Fair Work Commission backs Qube on drivers' dismissals over clocking on but natural justice concerns are raised

February 22, 2013

Summary dismissal without the opportunity to respond risks an adverse Fair Work Commission (FWC) finding, even if an employee is cheating his employer, a lawyer has warned.

Commenting on case of Leimonitis & Hourigan v Qube Logistics (Vic), Holding Redlich Partner Charles Power points out that such haste is likely to be deemed unfair if it means information that might have led to further investigation or another course of action could not be raised.

The Commission found that Hourigan had clocked on for Leimonitis three times when the latter was late to work and Leimonitis had done nothing to correct the action.

The Commission was clear that the two night-shift drivers’ actions, described as "dishonest" and "theft", were valid reasons for dismissal.

However, it had insisted in its findings that natural justice must be afforded to those dismissed as a matter of principle, that the evidence at certain points did not match Qube’s stated reasons for termination and that Qube did not enforce strictly start and finish times for night-shift drivers.

Despite that, and despite Leimonitis being dismissed without notice or payment in lieu, the Commission halved his two weeks’ compensation.

Hourigan’s dismissal was viewed as fair as his actions were unjustified and he had no evidence in his defence.

Power advises employers to ensure they have the evidence for a dismissal and not to exaggerate their claims.

They should give employees facing dismissal a properly informed and timely chance to defend themselves and payment in lieu of notice if they go ahead.

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