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HR unable to lasso “cowboy” behaviour

An employee was in fact dismissed after his employer made him “redundant”.
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HR unable to lasso “cowboy” behaviour

HR unable to lasso “cowboy” behaviour

19 June 2020

An employee was in fact dismissed after his employer made him “redundant” a couple of days after he had complained about being verbally abused by the managing director's brother.

The Fair Work Commission found that the HR manager was unable to influence the conduct of the managing director and his brother, which it described as “cowboy behaviour”.


Facts of case

The employee was a logistics manager for a hair/beauty supplies company. The employer claimed that it retrenched him due to a business downturn.

This happened after the employee had complained about the managing director’s brother. He complained to both the managing director and the HR manager. He claimed that the brother used very abusive and foul language towards him after the two disagreed over a work issue.

The managing director initially dismissed him via a phone call while he was on sick leave. However, immediately after, the HR manager emailed him a redundancy letter, citing a review of operational requirements and a need to downsize due to a sales downturn, stating that the employee’s position was no longer required. Employment ended immediately, with payment in lieu of notice.

However, when the employee later met with the HR manager, she said that she had overheard a conversation between the managing director and his brother, in which the brother said “get rid of” the employee.

The managing director then claimed that he had made the redundancy decision two weeks earlier, but post-dated the letter to reflect the actual date of redundancy. He produced the email and letter as evidence, but the FWC found the documents to be false. The HR manager admitted that her email was false, and she had not prepared any document until the day of termination.

There was evidence that Facebook posts and videos using rap music claimed that the company was performing well, but this was not the case.

The logistics manager was not replaced, six other employees were retrenched and staff numbers were reduced by various other means.


Decision

Despite the downturn in business, the employee was not retrenched. The managing director dismissed him as a spiteful retaliation on behalf of his brother. The HR manager in this company was unable to influence the conduct of the two brothers.

The dismissal was not a genuine redundancy because the employer failed to comply with its obligations to consult with the employee before making a decision. Instead, it was an unfair dismissal.

The FWC estimated that the employee would otherwise have remained employed for a further eight weeks, and awarded compensation of $14,000 less earnings from a new job.

The bottom line: Although this employer did employ a person with HR expertise, the FWC found this had no influence on the behaviour of management. Although there was a downturn in the business that may eventually have led to a justifiable redundancy, this was clearly not the reason why the employee was dismissed, and the employer failed to comply with its legal obligations towards employees proposed to be made redundant.


Read the judgment

Ramirez v AMR Hair and Beauty Supplies Pty Ltd, [2020] FWC 2963, 5 June 2020

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