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Gorman v General Distributors Ltd t/a Countdown Johnsonville
3 Jan 2007, D Asher, WA 1/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant's terms of employment under collective employment agreement ("CEA") - CEA provided for warning procedure for less serious misconduct and dismissal without notice for serious misconduct - First warning issued for poor work performance - Applicant given final written warning for falsification of company documents - Subsequent multiple complaints over applicant's conduct, however, no warnings issued - Applicant called in sick at beginning of five day rostered period - Did not call in sick second day - But did on third - On fourth day dismissed - Applicant claimed not told purpose of first disciplinary meeting - Prior to termination applicant provided medical certificate - No issue as to genuineness of applicant's illness - Not calling in on second day triggered dismissal - Not accepted by Authority as applicant had support of expert union organiser - Applicant could have had meeting adjourned and obtained reasonable opportunity to consider respondent's concerns responding - Respondent claimed fair and reasonable for it to say "enough was enough" - Authority found objectively measured a number of issues clearly more serious than failure to call in sick, which constituted performance shortcoming that culminated in dismissal - Multiple misconduct for which warnings not issued all significant - Nothing exceptional about applicants failure to call in on second day - Misconduct that led to termination unprecedented - Trigger for dismissal disproportionate to matters previously tolerated - Objectively respondent failed to have proper regard to those factors - Fair and reasonable employer must have objective grounds to say "enough is enough" - Respondent failed to put to applicant was no longer prepared to accept assurances of improved performance, denying applicant opportunity to address concerns - Disproportionate reaction meant respondents standards not those of fair and reasonable employer - Remedies - Dismissal unjustified - Unlikely applicant could have brought successful personal grievance if respondent had dismissed following serious complaints for which no warnings issued - Contributory conduct 50 percent - Parties to attempt to reach agreement on lost wages - Supermarket manager
Result: Application granted ; Compensation for humiliation, etc ($5,000 reduced to $2,500) ; Costs reserved
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