A recent unfair dismissal matter involving an Apprentice electrical worker has highlighted the need for businesses to be extremely thorough in any investigatory efforts relating to supposed misconduct of employees, as ensuring there is a valid reason for termination remains as crucial as ever. In this case the employee was originally engaged as a casual in January 2017 before commencing a full-time apprenticeship until being summarily dismissed by the business owner in May 2018.

The key facts

The employer had claimed the former apprentice Mr Jordan Lamacq had either resigned or alternatively was dismissed for serious misconduct and that the dismissal was in line with the Small Business Code. The serious misconduct referred to was the employer’s belief that Mr Lamacq was performing paid work on his own behalf alongside another former employee using work tools and a company van which was grounds for termination contained with the employment contract.

During the course of the hearing the employer tendered a written employment contract that was supposedly signed by both the employer and Mr Lamacq outlining these provisions and the business owner Mr Hickey stated that he was convinced another former employee and Mr Lamacq had been undertaking ‘cash jobs’ on the side. The employer did not dispute that via text he put an ultimatum to Mr Lamacq to give him information about the extent of the other former employee’s ‘cash jobs’ or face losing his own job. However, the employer argued that this ultimatum did not amount to an act of termination of the employer’s initiative.

By refusing to provide him with information relating to his request, Mr Hickey considered the actions (or lack thereof) of Mr Lamacq to be a resignation from his position. Mr Lamacq, although knowing his lack of a response would result in his termination, was adamant he did not resign and such an ultimatum was an unreasonable direction from the employer. Mr Lamacq contended that by issuing such an ultimatum, which could not have reasonably been met, amounted to a termination on the employer’s initiative. The Commission Member hearing the matter, Deputy President Asbury, determined that it was unreasonable that the employer put such an ultimatum to Mr Lamacq that it amounted to a termination at the employer’s initiative.

The decision

The manner in which Mr Hickey, who is self-described as a “Nazi Sparky”, sought to procure the information about the former employee from Mr Lamacq was described as equating to “threats and abusive commentary”. Deputy President Asbury stated that “No employee should ever be subjected to the threats and abuse meted out by Mr Hickey” and considered that “it is inconceivable that an employee who received such messages from an employer could have any view other than that the employment relationship had ended at the initiative of the employer”.

The interesting aspect was that the act of requesting the information itself would not be considered unreasonable had the request not been “couched in language so threatening and offensive that Mr Lamacq did not have an option to comply”. The post-employment allegations of theft that Mr Hickey had levelled against Mr Lamacq relating to both the use of fuel cards/company vehicle usage and the unauthorised ‘cash jobs’ could have justified summary dismissal. However, it was not accepted that Mr Hickey believed this at the time of the dismissal and his actions were based “in his pursuit of revenge against the former employee”.

As a result, Deputy President Asbury deemed the dismissal to be unfair and ordered the employer compensate the former Apprentice to the amount of $11,400.

Lessons for employers

Given in this matter that the employer initially argued that the apprentice had resigned and then secondly engaged in serious misconduct, the obvious question to be asked is whether the employer truly believed the reason for the dismissal was “sound, defensible or well founded”. The facts of the matter would clearly indicate that the decision to terminate was more likely based on reasons considered “capricious, fanciful, spiteful or prejudiced”.

The need to investigate issues reasonably and effectively will apply even in instances of believed serious misconduct. The employer must hold a belief at the time of dismissal that the employee’s conduct was sufficiently serious to justify summary dismissal and such belief must be based on reasonable grounds. Considering a large majority of the basis for claiming to have dismissed the employee for serious misconduct came after the dismissal occurred, many doubts as to whether the employer in fact held such beliefs at the time of dismissal are raised.

Was the reason for dismissal justifiable on an objective analysis of the relevant facts? Certainly in this matter it is clear that the employer did not have a justifiable reason for terminating the apprentice other than frustration at not being able to gain more information on a previously dismissed employee.

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