A recent decision of the Fair Work Commission is a reminder that context is everything when making a decision to terminate. Employers should be mindful of factors such as long term mental health issues, and language skills as potential barriers to understanding conduct and performance counselling processes.

The employer in this unfair dismissal case dismissed an employee following a protracted refusal to change work areas. The employee made an unfair dismissal claim, and was successful. As the employee’s role had been made redundant since his termination, the Commission awarded compensation in lieu of reinstatement.

The employer’s decision to terminate followed the employee refusing to follow a direction that he change work areas (although he would continue to work the same shift patterns and hours). The employer engaged in protracted discussions with the employee about the change. The employee took medical and carer’s leave during the time that the discussions occurred. One of the factors that lead to a decision to terminate was that the employee had sent a number of emails containing “alarming, incorrect and threatening statements” about the employer and its managers. The employee had subsequently provided medical evidence to the employer that, at the time of sending the emails, he was suffering from mental health issues which had since been treated and resolved. The employee had a history of such issues.

The employer argued that it had lost trust and confidence in the employee as a result of his actions. In support of this, it argued that the employee had not demonstrated that he understood the seriousness of his actions, that he had not shown remorse, and that it believed there was a risk that he would engage in such actions in the future. However, the Commission was critical of these arguments in its decision, stating that they “were not soundly or rationally based”. In reaching this decision, the Commission noted that the employer’s arguments ignored evidence that the employee had been suffering mental health issues at the time of the conduct and that this had led him to initiate communications which were not appropriate. The Commission also noted that the employee was not a native English-speaker, and that “the combination of a mental health issue and somewhat poor English language skills would have impacted on the communication” between employee and employer, where it did not appear to the Commission that the employer had taken this into account. As a consequence, the dismissal was found to have been unfair.

Employers should be careful to take account of an employee’s mental health, language skills and other factors that may affect comprehension of events during a disciplinary process prior to making a decision that may have a detrimental impact on an employee.  

Salazar v John Holland Pty Ltd t/a John Holland Aviation Services Pty Ltd [2014] FWC 4030