A recent decision of the Fair Work Commission (Mr Koichi Yokohata v Lidco Oregon Australia Pty Ltd [2015] FWC 5680) serves as a reminder that an employee’s temporary absence from work because of illness or injury is not a valid reason for their dismissal. The decision also highlights for employers the importance of: –
- Ensuring a valid reason for dismissal is given before terminating an employee’s employment.
- Ensuring employees are aware of the policies and procedures which relate to the taking of leave before disciplinary action is taken with respect to the taking of leave.
- Responding to or participating in, rather than ignoring, employee claims and in particular Fair Work Commission conciliations and hearings or any other Court proceeding.
Koichi Yokohata was employed by Lidco Oregon Australia Pty Ltd (“Lidco”) a company which provides design and fabrication of aluminium windows, frames and similar products. Mr Yokohata was employed by Lidco as a Technical Manager for a period of approximately 7 months.
On 5 March 2015, Mr Yokohata wrote to his employer confirming the details of an earlier discussion in which he advised that he would be absent from work from 6 March 2015 to 16 March 2015 as he had to undergo a medical surgery.
On 16 March 2015, Mr Yokohata telephoned his employer and advised that his recovery from surgery was taking longer than anticipated and that he would be returning to work on 20 March 2015.
On 20 March 2015, Mr Yokohata attended work and presented a medical certificate to his employer. Mr Yokohata was subsequently advised that he was being dismissed from his employment because, in his employer’s words, he was not “meeting our expectation”.
Mr Yokohata was not provided with any documentation confirming the reasons for his dismissal or the termination of his employment and was not paid his outstanding wages and accrued annual leave.
Mr Yokohata lodged an Application for Unfair Dismissal Remedy with the Fair Work Commission. Lidco did not file any material in response and failed to participate in a Conciliation Conference or Hearing before the Commission.
At the Hearing, Commissioner Cambridge accepted the uncontested evidence of Mr Yokohata which established that he had been dismissed from his employment in an extraordinarily abrupt manner and without proper explanation or reason being provided.
After concluding that Mr Yokohata had been unfairly dismissed, Commissioner Cambridge determined that an order for Mr Yokohata’s reinstatement was not appropriate given the conduct of his employer.
In lieu of reinstatement, Commissioner Cambridge ordered Lidco to pay $50,000.00 compensation to Mr Yokohata. This amount was calculated by approximating Mr Yokhata’s ordinary weekly earnings over 20 weeks.
In determining the amount of compensation payable to Mr Yokohata, the Commissioner considered that Mr Yokohata: –
- Had taken steps to mitigate his loss by finding alternative employment albeit at a lower rate of remuneration.
- Would have remained employed for a period of about 7 months had he not been dismissed and would have been likely to receive remuneration at or about the rate of his ordinary earnings over a period of at least 6 months.
The outcome from this decision appears to have served as an expensive lesson for the employer.
Macrossan & Amiet has represented numerous employees and employers in the past in relation to advice on the validity of reasons for dismissal and in responding to Unfair Dismissal Claims. If you would like advice on these matters or any matters concerning employment law, please contact Steven Hayles.
