Case Review: "Procedural Failures of Employer render the Dismissal of an Immigrant Employee as Unfair"

Employment Law: 23 March 2019

Ms Maricar Virata v NSW Motel Management Services Pty Ltd T/A Comfort Inn Country Plaza Halls Gap [2015] FWC 7932

The Applicant, Ms Virata, had been employed as a manager at the Employer's hotel which is a small business located in Halls Gap in Victoria. The Applicant travelled from the Philippines to take up employment with her Employer under a s.457 Visa arrangement. The Applicant was dismissed 3 July 2014 for misconduct by via email.

The terms of the Applicant's employment included an annual remuneration, based on 40 hours per week, of $55,000.00 plus 9% superannuation. The Applicant's de facto partner, also worked at the hotel and the remuneration paid to the Applicant was to be split between the Applicant and her partner.

The Applicant maintained that she regularly worked between 12 and 16 hours per day as a senior manager including on weekends and public holidays. The Employer says that the Applicant was not required to work those hours. The Commissioner commented that this arrangement was grossly exploitive.

The Employer conceded that the Applicant's dismissal was unfair but it maintained that there was a valid reason for the Applicant's dismissal due to;

1. two complaints of alleged bullying by Applicant's colleagues by the Applicant; and
2. one complaint to the Employer from a hotel guest about the Applicant's interaction with the guest; and
3. relationship issues between the Applicant and her partner said to have adversely impacted the workplace.

The Commissioner, in his decision found that the Applicant had been unfairly dismissed and rejected the Employers reasoning above. He awarded $27,500.00 as compensation. His key observations around the Employers lack of appropriate procedure were as follows:

• 'it is one thing to act, as a provider of services, on the basis that the customer is always right and to respond to the customer accordingly, it is quite another to accept without enquiry the customer's version of events for the purposes of disciplining an Employee or for performance management.'
• 'Even the most basic advice would, in my view, have avoided the error laden and unfair dismissal procedure adopted by Employer.'
• 'If an Employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the Employer should warn the Employee about the unsatisfactory performance before the dismissal.'

These comments detail the importance of having proper advice and procedure in place about dealing with misconduct in the workplace irrespective of the size of your business. Employers always need to remember to specifically put the allegation of misconduct to the employee (preferably in writing) and allow them to respond prior to arriving to their decision. The employer in this case failed to adopt and enforce procedurally fair warnings by which were his ultimate undoing in fairly trying to dismiss the Applicant in this case.