Fair Work Australia has made it clear in recent decisions that a lack of dedicated HR expertise within a company will not necessarily excuse employers from unfair dismissal claims.
When considering the merits of an unfair dismissal claim, FWA must consider a number of factors, including the degree to which the absence of HR specialists would affect procedures followed. However, the below decisions by FWA indicate that even where a lack of HR expertise did impact upon the procedures adopted by an employer, it will not always serve as sufficient justification for unreasonable behaviour towards employees.
In Mr William Patrick Ward v Arcadian Nominees T/A Instant Waste Management, FWA held that while it may not be reasonable to hold a company without a dedicated HR manager (such as Arcadian Nominees) to a high standard of procedural fairness, in this instance the company’s dismissal of an employee for alleged unsatisfactory performance without issuing any prior warning nonetheless amounted to unreasonable conduct.
In Garry French v Lufra Investments Pty Ltd T/A Best Western Lufra Hotel, an employee was summarily dismissed following a heated argument with his manager after the employee legitimately followed a conflicting instruction from the owner of the business. FWA considered that the employee was not given an adequate opportunity to respond to concerns, and found that the small size of the business and its lack of dedicated HR specialists did not justify “the deplorable way [the] termination occurred.”
Implications for employers:
Employers without the benefit of dedicated HR staff (such as small companies) need to be mindful of fair and proper procedures when considering the termination of a worker’s employment. FWA has made it clear that lack of dedicated HR expertise is not carte blanche to unfairly dismiss an employee. Employers uncertain of their obligations should always seek legal advice.