Company forced to reinstate cleaner despite dismissal not being unjust
A contracting company has been ordered by the Fair Work Commission (FWC) to redeploy one of its cleaners whom the company summarily dismissed after he refused to wear his uniform as part of an intentional “campaign of disobedience”.
As an act of defiance, the cleaner refused to wear the company T-shirt after a 2012 disagreement over payments that he believed were owed to him. When the company gave the cleaner a final warning over the matter, he still failed to end the practice and was observed not wearing his uniform on 19 August 2016. As a result, the cleaner was summarily dismissed by Southern Cross Cleaning’s SA division on 1 September 2016.
FWC Senior Deputy President Matthew O’Callaghan found that the company had a valid reason for dismissing the employee as the cleaner continually failed to wear his uniform.
The Senior Deputy President stated “I have concluded that [the cleaner] deliberately engaged in a campaign of disobedience with respect to the wearing of his uniform,” adding that the “entire basis” for the initial decision to dismiss him was his failure to resume wearing his T-shirt.
Although it was found that the company had given the cleaner clear instructions to wear the uniform and that he had been repeatedly warned, the company “undermined the integrity of that final warning” as the company gave him a further verbal instruction to wear his uniform when he failed to do so.
It was also found that since the incident occurred on 19 August 2016, and the dismissal occurred in September, this was “inconsistent”. The Senior Deputy President rejected the company’s claims that the relevant managers who would usually deal with these types of issues were all busy and therefore could not make the decision earlier.
The Senior Deputy President stated “simply put, if Southern Cross Cleaning considered [the cleaner’s] actions in not wearing his uniform warranted summary dismissal, it should not have let him at work after 19 August 2016.”
The Senior Deputy President also stated that since the company had a dedicated HR manager, he would have “expected it to have clear procedures to deal with circumstances such as this.”
He also found that the dismissal was not unjust, however it was harsh and unreasonable as the company did not give the cleaner an opportunity to discuss the dismissal before it was put into effect. The Senior Deputy President stated that if they had engaged in a discussion before termination “such a discussion may have bought about a different result rather than dismissal.”
Due to this, the Senior Deputy President ordered the company to reinstate the cleaner, however found that it would not be reasonable to pay him for the three to four months between the dismissal and reinstatement because of the cleaners “deliberate disobedience”.
This case illustrates how convoluted employment law rulings can be, and how important it is to know the finer details of handling disciplinary matters and terminations appropriately. If you are unsure of how to proceed with a disciplinary matter, do not hesitate to contact one of our Employment Law advisors on 1800 RETAIL (1800 738 245) .