Can an employee who makes a complaint be dismissed, if the claim is not the reason for dismissal?

24 OCT 2023

 

Employer’s may be hesitant to dismiss an employee who has recently made a complaint against the company for fears of an unfair dismissal complaint. Whilst an Employer can not dismiss an employee for making a legitimate complaint, what if there is a different, genuine reason for dismissal?

This was recently the case in a recent FairWork Commission decision. In Haytham M J Remawi v Virgin Australia, Mr Remawi made a number of reports between 2020 and 2022 alleging his co-workers were engaging in misconduct,  all of the complaints were investigated by Virgin and found to either be exaggerations or totally untrue.

On 3 September, Mr Remawi was involved in a safety incident involving a co-worker, resulting in Mr Remawi beginning a period of personal leave at the end of business that day. A little over two weeks later Mr Remawi was stood down pending an investigation.

Allegations were made against Mr Remawi, stating that he deliberately drove into a blind spot of another team member to create a reportable safety incident, he deliberately reported multiple false complaints against team members and also sent multiple unwanted and unsolicited Facebook messages to a female team member and continued doing so even after she asked him to stop.

The FairWork commission ultimately found that all of allegations against Mr Remawi were true. FairWork stated that given the validity of allegations made against Mr Remawi the dismissal was not harsh, unjust nor unreasonable.

So what does this mean for employers? If there is a valid reason for dismissal, and the reason for dismissal is not harsh under the criteria outlined in Section 387 of the FairWork Act 2009, the dismissed Employee does not have a case under unfair dismissal. Whilst an employee may not be fired for making genuine allegations against a co-worker or the employer, if an employee’s conduct is grounds for dismissal, they may still be dismissed. Making a complaint does not grant an employee immunity in regards to their conduct, especially if the complaint is false.  The Fair Work committee also commented that making false and/or exaggerated reports about co-workers may cause risk to their health and safety.

 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

 

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