Be careful when deleting an employee’s roster or application before a proper investigation – it could land you in hot water
In an important reminder for employers, in Renee Royall v Aussie Kids Pty Ltd [2022] FWC 2301 (31 August 2022), an employee was awarded six months wages (the maximum penalty for unfair dismissal) after their dismissal was found to have been harsh, unjust and unreasonable after their employer deleted the employee’s roster and removed them from their rostering app without a valid reason or fair process.
What happened?
- A Director of the Aussie Kids Pty Ltd childcare centre in Mildura sent an email to all employees expressing her disappointment at the high rate of staff absences on a particular day.
- A casual early childhood educator (who had regular and systematic employment) sent a reply on the rostering app Tanda that could be viewed by other employees. In her reply, she pointed out that certain workers had valid reasons for their absences and said that they should be praised for their efforts, not criticised. The educator also sent a similar email to the Director directly and attached a copy of the email to the Tanda post.
- The Director sent the educator home for the day and cancelled her rostered shifts for the rest of the week.
- Two days later the Director deactivated the employee’s Tanda account without notifying her.
The Considerations
When the matter went to hearing, Fair Work Commission Deputy President Ian Masson found the Director’s attempts to explain the treatment of the educator “wholly unconvincing”.
The Director denied that she had dismissed the educator and said that she had only cancelled her shifts because the centre had an excess of employees rostered that week. Under cross-examination though, she later admitted that the educator was the only employee, out of 17 other casual employees, whose shifts were cancelled. It was clear in the eyes of the Deputy President that the Director had dismissed the educator by deleting her shifts and removing her access to the rostering app.
Deputy President Masson further found that the educator’s dismissal unfair on the ground that it failed to:
- have a valid reason;
- notify the employee of the dismissal and the reason for it; or
- provide the employee with the requisite opportunity to respond.
The Outcome
As it was held that the employee would have likely remained employed for a further six months had the Director not unfairly dismissed her, Deputy President Masson awarded the employee the maximum compensation of six months wages.
Lessons for Employers
This case, in our view, is a textbook example of why an employer should not jump to remove an employee’s shifts or access to particular applications or systems prior to following a clear process. While we of course support employers taking steps to restrict access to important systems while an investigation is ongoing, we do not recommend this be done without first clearly communicating to the employee to ensure that such conduct is not deemed to be a dismissal.
When we don’t communicate well, we leave a gap for others to fill in the blanks. In this case, the lesson was an expensive one!
For further information or guidance on how to best manage an employee’s access after performance or conduct concerns are raised, please reach out to our expert team.