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The virus made me do it: Unfair dismissal and COVID-19 arrangements

11 November 2020

#Workplace Relations & Safety, #COVID-19

Published by:

Aiyana O’Meara

The virus made me do it: Unfair dismissal and COVID-19 arrangements

The Fair Work Commission (Commission) has ruled that employers must take into account the challenges the global pandemic has placed on their employees before opting for dismissal.

The recent Allpet Products decision has clarified the position of the Commission regarding the pandemic and its effect on employees.

The decision involved a sales representative’s challenges with COVID-19 arrangements and adjustments, contributing to Deputy President Anderson (DP Anderson) finding that Allpet’s reasons for ending her employment were invalid.

What happened?

Allpet Products (Allpet) is a pet product business with national coverage. The employee held a customer-focused role, with additional weekly reporting requirements. She was the company’s only employee in South Australia and from March 2019, was the sole representative servicing both South Australia and Queensland.

From late 2019, Allpet became concerned with the employee’s failure to meet reporting requirements leading to several informal ‘reminders’, a formal warning and meeting where she acknowledged the failures and resolved to do better.

Despite this, the employee continued to struggle in the role and when COVID-19 hit, she faced additional challenges including:

  • no interstate travel preventing travel to Queensland and face to face meetings with customers
  • additional reporting requirement of daily sales reports to monitor the effects of COVID-19
  • an hours and salary reduction of 20 per cent.

One week after these changes, the employee was called for a second performance meeting. The following week she received a second written warning about her reporting requirements, before taking leave for the Easter break.

On her first day back, Allpet terminated her employment by email, listing reasons which included a failure to comply with reporting requirements and provide satisfactory service to clients.

Over the Easter break, Allpet also found Instagram posts they claimed as evidence the employee had disparaged the business. This was part of the reason for deciding to end her employment but they did not inform the employee of this nor provide her with an opportunity to respond.

Importance of a valid reason for dismissal

Whether or not a dismissal is “unfair” comes down to an overall assessment of what was objectively fair in the circumstances (guided by mandatory considerations in the Fair Work Act) but without establishing a valid reason for ending a person’s employment, an employee will “almost invariably” be unfairly dismissed.

A performance failure is not automatically a valid reason for ending a person’s employment and in this case, DP Anderson assessed the validity of the dismissal for that reason in the context of COVID-19 arrangements.

Shifting the goalposts

The Deputy President adopted a ‘balancing exercise’ to determine whether the reporting issues were serious enough to justify termination.

DP Anderson found that the heavy workload and reduced hours and pay were significant considerations in finding the reporting concerns were not a valid reason for ending her employment. 

The Deputy President accepted that even before the COVID-19 changes, the sales representative was struggling with a heavy workload. 

Following the COVID-19 changes, she was expected to service South Australia and Queensland as usual, complete her original reporting requirements, and complete her additional COVID-19 reporting requirements “for 20% less pay and in 20% less time”. In other words, “the goalposts had shifted but not the workload”.

DP Anderson also noted that Allpet failed to recognise the employee’s anxieties about meeting customers in person and concerns for her job security due to the pandemic before finding that the reporting failures were not serious enough to be a valid reason for dismissal.

In relation to the employer’s customer service concerns, the Deputy President found that a ‘handful of errors’, “particularly in the unorthodox circumstances” of COVID-19 and the new arrangements did not justify termination.

Allpet’s reasons concerning business disparagement came from a social media post on the employee’s private Instagram account. The post was in response to a COVID-related street poster saying “Stay at home SAVE LIVES”. In her post, the employee had noted her job meant she was not able to stay home or she risked losing her job. She also noted her hours and salary had been reduced. 

Again, DP Anderson found that the post was understandable in the circumstances and was not a valid reason for ending her employment.

Lessons for employers

When considering to end a person’s employment for any issues, an employer should be mindful of whether the circumstances of the pandemic in their workplace should be factored into their final decision.

Conversely, the decision suggests little sympathy for employers who rely on COVID-19 to explain a failure to follow the proper process when ending a person’s employment, with DP Anderson commenting that despite Allpet being a relatively small business with no dedicated human resources team:

“It has had decades to understand the risks and complexities inherent in employing and dismissing staff notwithstanding the unusual pressures of 2020.”

If you have any concerns about implementing a fair performance management process or disciplinary processes in the midst of a pandemic, please contact our team for advice.

Authors: Edmund Burke & Aiyana O’Meara

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Aiyana O’Meara

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