29 Sep 2011
Employer's belief at the time of termination doesn't mean there's a valid reason for the dismissal
by Joe Catanzariti
When looking to dismiss or summarily dismiss an employee, it is imperative employers have a valid reason for the dismissal at the time of the dismissal.
The recent Fair Work Australia decision in Steven Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway  FWA 3698 provides useful guidance for employers who believe they have valid reasons for dismissing or summarily dismissing employees.
The request to work, the refusal, and the dismissal
An employee of Transpacific Cleanaway, Steven Pietraszek, was asked to work on Christmas and Boxing Day. He did not attend for work on the Christmas Day and Boxing Day public holidays, and a month later, following disciplinary interviews, was summarily terminated.
Mr Pietraszek said that:
about two years ago he requested and was given a transfer to another position not requiring weekend or public holiday work, because his wife had a medical condition which meant he could not leave her for an extended period of time;
at the time of that transfer he was advised that his new role did not require him to work public holidays;
before January 2011, he had not worked on a public holiday for more than 12 months; and
he informed Cleanaway some time before Christmas that he was not available to work on those public holidays.
On the other hand, Cleanaway relied upon section 114 of the Fair Work Act 2009 (Cth), which says that an employer may ask an employee to work on a public holiday if the request is reasonable. Cleanaway argued its request was reasonable, and that when Mr Pietraszek was asked why he was refusing to work, he gave no explanation.
Was Mr Pietraszek's refusal to work reasonable?
Commissioner Williams of Fair Work Australia accepted the evidence that Cleanaway was contractually required to provide services every day including public holidays, and that the request made three weeks in advance was reasonable. Was Mr Pietraszek's refusal also reasonable?
Commissioner Williams accepted that Mr Pietraszek had genuinely mistaken Cleanaway's practice with respect to working on public holidays, and as a result made plans over Christmas. This erroneous belief had been reinforced by the fact that he has not been required to work public holidays at all for approximately 12 months. These facts, and Mr Pietraszek's family responsibilities, supported his argument that his refusal was reasonable.
On the other hand, although Mr Pietraszek had good reasons to refuse the work, he refused to explain his position and situation properly, and this was a problem for the Commissioner: "when an employee does have good reasons for refusing their employer's request to work on a public holiday, but does not explain those reasons to the employer, I do not believe it can be said that the refusal by the employee to work the public holiday is reasonable."
A valid reason for termination?
So, Mr Pietraszek had good reasons to refuse, but his actual refusal was not reasonable because it left his employer in the dark about the reasons for the refusal. Was this a valid reason for his termination?
The test applied by FWA is "whether on the evidence in the proceedings before the tribunal it is shown that there was a valid reason for the dismissal". This means that it is not limited to whether the employer had reasonable grounds, on the facts at the relevant time, for dismissing the employee.
In this case, after considering all of the evidence, he held that Mr Pietraszek did, in fact, have good reasons for his refusal of work, and that there was no valid reason to terminate his employment. He ordered Mr Pietraszek be paid $12,595 in compensation.
Lessons for employers
The relevant test, as put by Commissioner Williams, is "not whether the respondent on reasonable grounds at the time of the dismissal believed there was a valid reason for dismissal but rather whether on the evidence in the proceedings before the tribunal it is shown that there was a valid reason for the dismissal".
When looking to dismiss or summarily dismiss an employee, it is imperative employers have a valid reason for the dismissal at the time of the dismissal, as well as prepare evidence of the valid reason in case they go to a court or tribunal on the issue.
This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.
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