Early Advice, Strong Advocacy: Turning Flawed Misconduct Allegations into a Successful Resolution
The Synopsis
Enterprise Legal recently acted for an employee who resolved an unfair dismissal dispute after their employment was terminated while on sick leave. The termination was premeditated and was based upon unproven allegations that the employee was required to respond to while on sick leave. EL assisted the employee from the initial response to those allegations, through to a Fair Work Commission Conciliation, strategically negotiating a very strong compensation outcome for our client.
Setting the Scene
Our client had been employed by their employer for over 15 years. Our client expressed to their employer that they were suffering from burnout and needed some time off for mental health reasons. While on leave, the employer issued a letter to our client, making a number of vague and unspecific allegations of misconduct. The employer invited a response from our client however the timeframe required for said response was unreasonably short.
EL stepped in to urgently seek proper particularisation of the allegations and additional time to respond. Upon receipt of further information (with some ‘new’ allegations to boot) we worked with our client to provide a detailed and comprehensive response to deny the allegations. After a second round of additional allegations, another detailed response (this time supported by character references) and a complete failure to substantiate the allegations, the employer proceeded to terminate our client.
EL then assisted the employee to commence unfair dismissal proceedings against the employer. The parties were unable to reach an agreement at the first conciliation, however during a second conciliation through the Fair Work Commission we negotiated a very strong compensation outcome for our client.
The Game Plan
At EL, our strategy is tailored to the specific facts and circumstances – predominantly this will be based on our client’s goals, taking into account their legal position.
In this particular instance, our strategy was primarily to provide a detailed response to all of the allegations including by pointing out the employer’s procedural fairness requirements and obligations (and any failures to meet them), so that our client was ‘on the record’ and properly engaged in that process. It was clear from the outset that the employer was going to terminate our client’s employment no matter what response was given to them,
Although our client didn’t want their job to be taken away from them, it was very obvious from the outset that the employer had already made up their mind to do that. That being the case, our client’s goal was to keep the employer accountable and ensure they would be in a good position to commence an unfair dismissal claim if that became necessary. Ultimately it was necessary and it was via the employer’s failure to follow procedural fairness (despite our repeated warnings) our client was able to achieve a very good outcome.
The Resolution
The specifics of the outcome cannot be disclosed for confidentiality reasons, but our client walked away with an extremely satisfying result. Our client obtained an outstanding amount of compensation, but more importantly was able to keep their reputation and mental health in tact and has since moved on to another role that is far more rewarding.
The EL Experience
For our client, having us on board from the outset was imperative to navigate the complexities and hold the employer to account for their failure to meet procedural fairness obligations. Here’s what they had to say after their matter was resolved:
“After 16 years in a wonderful role that I loved I was fired for serious misconduct.
I was devastated, shocked and overwhelmed, my world turned upside down and I had dropped down a deep dark hole of vulnerability and anxiety.
This is where we were introduced to Johnathon from Enterprise Legal. Johnathon took the helm and calmly and professionally steered us through the legal mumbo jumbo of show cause, work cover claims and responses to allegations under strict and unreasonable timelines. Johnathon took the job of managing our claim of unfair dismissal entirely, enabling me to regroup and focus on my mental health. The entire process was very foreign to us, the legal world has its own language Johnathon’s ability to write our responses in this language was spectacular and his attendance at conciliation was comforting and reassuring as he represented me and was my voice.
Should anyone find themselves in an unfair dismissal situation I thoroughly recommend Johnathon Althaus as your solicitor I have no idea where I would be without him. Certainly not back to healthy and well and returning to work like I am.”
