In Unfair Dismissal matters the Fair Work Commission looks at whether an employee’s dismissal was harsh, unjust or unreasonable in the circumstances. What constitutes a harsh, unjust, or unreasonable dismissal will depend on the facts of each case. In order to make this assessment, under section 387 of the Fair Work Act, there are a range of factors that the Commission must consider before reaching a decision. One of these factors is the employer’s level of HR expertise and resources and how this might have impacted the dismissal.
This particular factor is usually wielded by small business employers, with no dedicated HR expertise, trying to justify the dismissal of employees in less than ideal circumstances. However, in the recent case of Umberto Mammarella v Department of Parliamentary Services, an employer’s failure to utilise its own large human resources team when sacking an employee contributed to a finding by the Commission that the employee had been unfairly dismissed.
Mr Mamarella was employed as an Electoral Officer with the Department of Parliamentary Services, a large public employer with its own dedicated human resources team. As part of his duties, Mr Mamarella worked alongside the (now former) member of the Victorian Legislative Council, Khalil Eideh, in the member’s electoral office.
In August 2017, the Department was made of aware of alleged irregularities in invoices authorised by Mr Mamarella, which precipitated an investigation into the office of Kahlil Eideh by Victoria’s anti-corruption watchdog, the closure of the office for a period of a year while the investigation was underway, and the generation of a large amount of public debate, media attention and scorn.
As a result, in December of 2018, Mr Mamarella was sacked by the Department’s Secretary on the grounds that Eideh had expressed to him that he no longer had the necessary trust or confidence in Mr Mamarella’s ability to perform his role, although no reasons for these assertions were supplied. Mr Mamarella sought to challenge this, arguing that he had been unfairly dismissed.
During the proceedings of the case, it was noted that Mr Mamarella’s dismissal was “executed in haste and lacked the normal procedural steps one would take to ensure a fair and reasonable process”. It was revealed in evidence, that despite the fact that the Department had a dedicated human resources department (who would ordinarily ensure that the Department follows proper procedures), in making the decision to terminate Mr Eideh, Human Resources’ expertise had not been sought, with the Commission finding that “it appears Mr Lochert failed to utilise that expertise available to him which had the effect of the DPS acting in a procedurally unfair way.”
Ultimately, the Applicant’s dismissal was found to be unjust and unfair.
A key lesson here for employers, is that if your organisation does have the benefit of human resources specialist, this expertise should be sought and considered before terminating an employee.