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Employee wins unfair dismissal case despite calling his boss a “dickhead”

Tuesday, 12 March 2013 | By Patrick Stafford

Small businesses have been reminded to follow unfair dismissal procedures to the letter, following a recent case in which an employee was found to have engaged in misconduct but wasn't terminated fairly due to improper notice.


The warning comes after a recent case in which an employee had broken a company's workplace rules, but ultimately escaped dismissal due to a business not using proper procedure.


Rachel Drew, partner at TressCox Lawyers, told SmartCompany this morning employers need to think of the dismissal process as a two-stage affair.


"They need a good reason, and then the second stage is that they need to follow a fair process," she says.


"The particular process available is the small business fair dismissal code, which sets out what's expected. All businesses have to follow some sort of process."


The case involves an employee of paint and coatings company AkzoNobel, who was involved in a fight with his manager about why he hadn't allegedly been following his work schedule the previous day.


The employee, Sam Guido, and the manager got into a fight about the discussion. Guido started shouting "this situation is f--ked" and called the manager an idiot, according to the judgment. He also said "dickhead" as the manager walked away.


The final straw came in March 2012, when Guido told the company he was sick and taking sick leave. On the third day of his sick leave, he was seen at a hotel during lunch time. After investigating the charges, Guido confirmed his whereabouts.


But although the Fair Work Commission found Guido's conduct was enough to constitute a termination, the business didn't follow procedure properly.


The commission found that during meetings after the incident took place, Guido "did not have a full opportunity to respond to the allegations being put to him".


Drew says businesses need to ensure they follow the proper procedure and get feedback before going ahead with a dismissal.


"The elements included in the dismissal process might be giving the employee notice there is an issue with their performance, telling them what the problem is in writing, and then give an employee an opportunity to respond."


"Depending on how serious the incident is, you might need to tell the employee to take a couple of days off work on full pay to give them the opportunity to get some advice and get a response."


Drew says business owners can't simply predetermine the matter before going through the procedure, especially after asking for feedback.


"You have to go through the process, allow some time to respond and then consider the response."


AkzoNobel was contacted this morning, but a response was not available prior to publication.


This story first appeared on SmartCompany.