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Filling Job Without Discussion Unfair

22/4/2010The rush to replace a worker led to a ‘breakdown’ in procedural fairness, FWA has ruled in dismissing a company’s argument that she had abandoned her employment by going home sick.

A Kenny’s Cardiology supervisor applied to become a store manager during a nationwide restructure of the business in September 2009.

The day after the interview, the worker was told she was unsuccessful. She immediately started to feel panicked and ‘extremely stressed’. The worker advised a colleague to tell her manager that she was going home sick, because she ‘could not face him’.

The same afternoon, the worker discovered she had been replaced by one of her colleagues and another person hired.

The worker filed an unfair dismissal claim.

‘Irresponsible’ actions

Kenny's Cardiology argued the worker had resigned her employment by abandoning her shift without advising her superiors that she was sick and going home.

The company submitted that leaving the store was ‘irresponsible’, and that her actions constituted an instant dismissal offence.


Commissioner Greg Harrison found there was ‘no basis’ to find the worker had abandoned her employment.

He accepted that the worker left the store in a ‘highly emotional state’, and that she had requested a colleague to advise her manager she was going home sick.

‘Her conduct cannot be characterised as a repudiation of the contract of employment giving rise to the concept of abandonment of employment,’ Smith said.

‘Within two hours Mrs Kemp’s (worker) position was filled by the promotion of another employee and an additional person was employed.’

‘It was the precipitate action of the respondent (employer) in unilaterally filling her position without prior discussion or consultation which lead to the cessation of the employment relationship.’

Accordingly, Smith ruled the worker was dismissed from her job.

Unfair, no reinstatement

Smith also ruled the dismissal was harsh, finding the company had ‘erroneously assumed’ she had resigned.

‘I cannot discount the possibility that this assumption was aided by the desire to restructure the business without Mrs Kemp,’ he said.

‘Mr Cotte’s (boss) Statutory Declaration clearly indicates his view that Mrs Kemp would not fit into the new business strategy.’

‘The termination of employment was not a reasonable response to Mrs Kemp’s conduct. The rush to replace her resulted in a breakdown of procedural fairness.’

Commissioner Smith noted reinstatement would be ‘impractical and inappropriate’, instead ordering 26 weeks of salary as compensation.

Kemp v Allied Brands Limited T/A Kenny's Cardiology [2010] FWA 2769 (19 April 2010)
Article sourced from Workplaceinfo, A daily Bureau service for HR & IR professionals. For a free 14 day trial, contact us on "info@wrscentre.com.au".
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