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Position, position...no position

Unfairly dismissed after questioning her employer's JobKeeper decisions.
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Position, position...no position

Position, position...no position

27 November 2020

By Mike Toten

A real estate saleswoman was unfairly dismissed because she openly questioned her employer’s decision to withhold a portion of the JobKeeper payments it received instead of passing the full amount on to employees paid by commission.

The employee received compensation of $10,000 because reinstatement was impracticable and she quickly obtained other employment. A notable aspect of the case was that she was a high-performing award-winning employee, but the employer objected to her “stirring” and dismissed her only two months after she won her award that gave her the status of “Premier Agent”.


Facts of case

The employee’s success at selling real estate led her employer to recognise her as a “Premier Agent”. However, when the employer registered for JobKeeper, the employee had several conversations with the owners of the business and the head office of the real estate franchisor about her JobKeeper entitlements, and also contacted the Fair Work Ombudsman.
 
The employee’s remuneration was a wage that was then deducted from her future sales commission payments.
 
The head office held a webinar to explain how JobKeeper would work for commission-based employees, and told them that they would receive only 60% of the entitlement. The business owners claimed that the employee then asked to be stood down because she would be better off without JobKeeper. They also claimed that she regularly raised the issue at work with other employees, and was the only employee dissatisfied with the decision.
 
The owners then claimed that her preoccupation with JobKeeper was causing distraction from her work and affecting workplace harmony. Eventually there was a “showdown” between the parties and the owners claimed that the employee stormed out of the office. One owner told her she was dismissed and later confirmed it by email, giving the reason of “irreconcilable differences”. Claims were also made of unsatisfactory job performance and trying to turn other employees against management. However, the other business owner then asked her to return and promised to engage a conflict resolution consultant to mediate the dispute. However, nothing came out of this.
 
The employer claimed that there had been problems with the employee’s work performance and attitude before the JobKeeper issue surfaced, and that it had recommended she attend a coaching course to improve her performance.


Decision

The Fair Work Commission (FWC) found that there was no valid reason to dismiss the employee, and gave the following reasons:
  • There was no evidence of unsatisfactory performance, despite the employer’s claims. Also, one of the owners had offered to reinstate her.
  • She was entitled to enquire about her JobKeeper situation and, given that she received conflicting advice, entitled to seek clarification from the employer. Expressing her dissatisfaction with that response was not a valid reason for dismissal.
  • The employer failed to observe procedural fairness by: not warning her about any unsatisfactory performance, not warning her that her employment was at risk, not notifying her of a valid reason for dismissal, and calling her into a “disciplinary” meeting without warning.
 
The FWC awarded compensation of $10,000. The employee obtained another job about one month after dismissal.
 
The bottom line: It appears that the employer became frustrated with the employee’s complaining about its JobKeeper decision, and overreacted. The employee was entitled to question and criticise the decision, and there was no evidence that it adversely affected either her own job performance or that of co-workers. Therefore, there was no valid reason for dismissal and the overreaction resulted in procedural fairness oversights.


Read the judgment

Smith v Fearon Howard Real Estate Pty Ltd t/a Ray White Balmain [2020] FWC 6049, 11 November 2020

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