A Melbourne-based businessman has admitted that he ‘jumped the gun’ when he sacked a worker for operating a side business on company time.
Ben Lek , chief executive of cabinetry and hardware importer Lek Supply, has been ordered by the Fair Work Commission to reinstate sales associate Abigail Jackman after it found that he had unfairly sacked her.
Jackman had started her own business, Royal Scent & Co, while she was on maternity leave last July, selling candles, as well as bath and body products.
When she returned to work, Lek said that Jackman was taking calls and fielding text-based customer queries on her phone during business hours.
Dismissal was ‘harsh’
Commissioner Sarah McKinnon found that although Jackman did conduct her private business during her working hours, she ruled the manner in which Jackman was dismissed was “harsh”.
Commissioner McKinnon found Jackman was given no opportunity to respond to the reasons for her dismissal, which occurred without notice in a meeting she was not told the purpose of.
“It was a disproportionate response to a valid concern, which had only recently become apparent,” Commissioner McKinnon said.
“A warning would have been a more appropriate response.”
Boss admits he should have sought legal advice
Speaking to Smart Company, Ben Lek said he should have sought legal advice before deciding to fire the employee.
“The issue was created from her and it was quite a major issue,” he said. “It should have never happened, but at the end of the day, we didn’t follow the steps for dismissing her properly.
“With a small business like ours, not having legal representation to know all the ins and outs is probably where we made our mistake.”
Miles Heffernan from Employer Advisors says the case is timely reminder for businesses to always seek professional advice before dismissing an employee.
“This was a classic case where the employer did not give the employee procedural fairness,” he said.
“Even if you plan to dismiss a worker, you must follow proper procedures and processes to make sure you avoid an unfair dismissal claim – and that’s where firms like ours can help.
“If you are having trouble with a difficult employee, give us a call and we can advise you of your options, and even manage the process for you.”
Worker will be welcomed back to the business
Commissioner McKinnon decided not to award lost wages because of the weak financial position of the business and because Jackman’s conduct was the “sole catalyst” for the dismissal.
Mr Lek said that he doesn’t intend to appeal the decision and will welcome Jackman back to the business in the coming weeks.