Skip to main content

Employer's HR department criticised by FWC

The Fair Work Commission (FWC) has criticised Komatsu Forklift Australia Pty Ltd's HR department for fundamental failures of due process in its dismissal, via email, of a worker who had been absent due to mental health issues.

The employee, Mr John Finnegan, worked for the Komatsu Forklift Australia Pty Ltd (Komatsu) for eight years. Komatsu is part of the business of Komatsu Australia Pty Ltd (KAL). In August 2015, Mr Finnegan was placed on a performance improvement plan (PIP) after failing to meet his sales budget key performance indicator (KPI) requirements. He claimed that problems with his personal relationships, particularly involving his new manager, contributed to his performance difficulties.

In March 2016, when it became clear to Komatsu that Mr Finnegan was experiencing some mental health problems, the PIP was abandoned and he was immediately placed on sick leave due to 'ongoing concerns regarding behaviour and work performance'. Komatsu required Mr Finnegan attend an independent medical assessment with psychological testing. The medical assessment was documented in a report dated 23 March 2016, which concluded that Mr Finnegan was temporarily unfit for his usual work with his current manager.

Komatsu implemented a return to work plan for Mr Finnegan in April 2016 that involved him working for a different supervisor in a different work location, and engaged in duties performed for a related entity, KAL (which were substantially different to his previous sales performance role in that they did not involve any KPI requirements). 

At the commencement of the third week of the return to work plan, Mr Finnegan was transferred back to duties for Komatsu instead of KAL but remained at a different location and under direction from a different supervisor. Mr Finnegan expressed concerns about an anticipated return to any work under the supervision of his previous manager and Komatsu decided to cease the return to work plan as a result of these concerns.

In May, Komatsu proposed to bring Mr Finnegan's employment to an end by way of a deed of release but Mr Finnegan rejected this proposal. Komatsu subsequently directed Mr Finnegan to return to work in his previous role but reporting to a different manager. This second return to work arrangement once again involved Mr Finnegan's ongoing performance in line with his KPI requirements.

Mr Finnegan did not return to work and instead provided medical certificates indicating that he was unfit to work. After two failed attempts to implement a return to work plan and more than three months absence on unpaid sick leave, Komatsu sent a letter to Mr Finnegan indicating its intention to make a determination about his on-going employment. Komatsu required Mr Finnegan to submit material regarding his capacity to return to work by 9 November 2016. Lawyers acting on Mr Finnegan's behalf requested an extension of time until 16 November in order to submit the information. This was granted by Komatsu. On 17 November, Mr Finnegan's lawyers sent another extension request but it was denied by Komatsu.

On 22 November 2016, Komatsu sent an email to Mr Finnegan attaching a letter of dismissal. Komatsu claimed that the reason for dismissal was Mr Finnegan's refusal of reasonable directions to return to work. It said that Mr Finnegan's failure to show that he could perform the inherent requirements of his role, after being given ample opportunity to do so, meant it could no longer employ him.

Mr Finnegan submitted that he had been unfairly dismissed and made particular criticism of the fact that Komatsu had failed to contact his psychiatrist in order to obtain accurate information about his condition.

Decision
Commissioner Cambridge said that medical evidence confirmed Mr Finnegan's incapacity to work due to an illness, rather than his refusal to perform work. He stated that the dismissal was communicated insensitively and in a highly inappropriate way considering Mr Finnegan's mental health issues.
The Commissioner also considered that Mr Finnegan was not provided with a proper opportunity to respond to issues surrounding his capacity for continued employment. He said that Komatsu should have provided for a meeting with Mr Finnegan and his representatives before making the decision to dismiss.

The Commission ruled that Komatsu 'misconstrued' Mr Finnegan's incapacity to work as a refusal to perform his duties. Mr Finnegan did not refuse to perform work but he was unable to perform work, and the Commissioner held that 'the reason Komatsu stated for the dismissal of the applicant cannot be supported as a fact, and therefore was invalid'.

Komatsu was ordered to pay Mr Finnegan $1,250 in compensation.

Lesson for employers

It is clear from this decision that Komatsu did not fully understand or articulate the reason for the decision to terminate the Mr Finnegan's employment. While it may have been established that Mr Finnegan was unable to fulfil the inherent requirements of his role, Komatsu (in the termination letter) asserted Mr Finnegan's refusal to return to work as the basis for the decision to terminate his employment. The circumstances did not support a conclusion that Mr Finnegan refused to return to work, but rather, that he was unfit to do so. This meant Komatsu was unable to establish a valid reason for the dismissal.

It is important that employers carefully consider the reasons for a proposed dismissal, ensure the reasons are lawful and factually correct, and articulate them in a way that supports a lawful and reasonable decision.

This case also cautions HR specialists against treating workers as human resources, suggesting that the vocation be renamed to 'human relations'. The Commissioner emphasised the risk of ignoring the fact that workers are 'easily damaged' human beings, which should be handled with more care than machines. For this reason, as well as affording natural justice and procedural fairness, employers should review their employee management practices to ensure that any dismissal decision is communicated in a way that is respectful and maintains basic standards of human dignity.

AWPTI - workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

http://awpti.com.au/investigations/
www.awpti.com.au

Originally published at - http://www.mondaq.com/australia/x/596486/Health+Safety/Fair+Work+Commission+criticises+HR+process+for+dismissal


Labels:
Location: Sydney NSW, Australia

Comments

Post a Comment

Popular posts from this blog

Unfair dismissal – harsh to dismiss, however reinstatement not appropriate

In the recent decision of  Paul Johnson v BHP Billiton Olympic Dam Corporation Pty Ltd  [2017] FWC 4097, Commissioner Hampton found that, although the employee had engaged in misconduct constituting a valid reason for dismissal, the dismissal was nevertheless harsh due to a number of mitigating factors. However, the Commissioner did not consider reinstatement appropriate because the employer had a rational basis for its loss of trust and confidence in the employee given the importance of the need for compliance with safety policy and the maintenance of appropriate discipline in connection with workplace health and safety matters. The employee was instead awarded compensation. The facts The employee was employed by BHPB from 24 May 2001 until his dismissal on 31 March 2017. At the time of his dismissal, the employee was a process specialist, responsible for a team of technicians looking after a flash furnace and other equipment in areas of a smelting facility at an und...
Post a Comment
Read more

Workplace Investigation biased process

The presence of bias be it actual or perceived during an investigation can derail the investigation and undermine any findings and recommendations. Complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews. This article will examine the process, part two will examine bias during interviews. Workplace investigations are defined as  "an unbiased gathering of evidence"  and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules; Approach the investigation with an open mind. Do no make any judgements on the parties Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered. Gather all the evidence, not just the evidence that supports the complaint Do not form a theory and then seek evidence to support your theory only Do not make early determinations If you feel that you ...
Post a Comment
Read more

Violence Valid Ground for Dismissal

Violence Valid Ground for Dismissal The Fair Work Commission (in the case of  Sekirski v Scope (Vic) Ltd [2017] FWC 1200 ) has found that an employee who assaulted a co-worker by striking her in the face was validly dismissed.  Stif Sekirski commenced employment as a Disability Support Worker with Scope (Vic) Ltd in November 2014.  Mr Sekirski’s employment was terminated on 2 September 2016 on grounds of serious misconduct. It was alleged that Mr Sekirski punched a co-worker in the face, then called her a bit** and threw a chair in her direction.  The FWC was satisfied that this conduct had occurred, and held that this conduct provided Scope with a valid reason to terminate Mr Sekirski’s employment. It is important that when confronted with matters involving violence in the workplace employers ensure that they conduct a timely and thorough investigation.   We recommend that even if summary dismissal is a likely outcome you should s...
1 comment
Read more