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IR Update: Employee prevented from serving notice period wins unfair dismissal case

February 01, 2016

A woman, who worked as an advertising sales representative, has won her unfair dismissal case due to her employer’s misunderstanding of the employee’s intentions to work out her notice period.

In July 2015, the employee was under significant stress from being overworked by her employer. According to her evidence, the owner of the company became quite abusive and started yelling at her over the phone. She told her boss that if he did not stop she would resign and after the abuse continued, she gave her three weeks’ notice, outlining the final day of work as 24 July.

Due to the amount of stress that ensued, the employee did not show up for work on Monday 6 July and instead provided a medical certificate stating that she was not fit for work. On that day, a fellow colleague contacted the employee and advised that she was to return her work keys, mobile phone and uniform as soon as possible. When the employee carried out these instructions, she was refused entry into the office, which led to further stress and a visit to the hospital.

The employee was given a week’s notice, as the employer mistakenly believed that she did not intend to return to work after 6 July. The employee then applied for an unfair dismissal remedy as she had every intention of serving out her notice period but was not allowed to do so by her employer.

In the Commissioner’s view, the woman had clearly intended to work another three weeks at the office, meaning it was not so stressful that she could not return. She had resigned on her own violation. However, through some confusion, her employment was ended on this date at the employer’s initiative, not by her act of resignation. According to Senior Deputy President Richards, the effect of the request was to deprive the employee of her tools of trade and thus to prevent her from serving out the notice period.

As a result it was held that on 6 July, the employee was effectively dismissed but was not given a valid reason for her termination. As no valid reason could be established, the Commission ruled that the woman had been unfairly dismissed and ordered the employer to pay the remaining two weeks’ notice that the employee was entitled to.

The full text of this case can be found here.

This case reinforces the importance of clear communication between employers and employees, particularly where termination is imminent. Employers must seek clarification from their staff if they are in doubt and are advised to call the National Retail Association Hotline on 1800 RETAIL (738 245) for further guidance.

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