By David Bates

Should ‘HR’ stand for ‘human relations’ instead of ‘human resources’? Fair Work Commissioner Ian Cambridge thinks so.

In a recent decision delivered by the Fair Work Commission against Komatsu Forklift Australia Pty Ltd, Commissioner Cambridge concluded the Company’s decision to dismiss an employee with mental health issues via email was unacceptable, and that dismissal ‘by electronic means should be strenuously avoided’.

To make matters even worse, the Commissioner found Komatsu’s HR Department had incorrectly treated the employee’s absence on medically-certified sick leave as a refusal by the employee to perform his duties.

In one sobering passage of the decision, the Commissioner stated: “In fairness to Komatsu, many large employers with dedicated HR specialist teams seem to be unable to avoid errors of the kind identified in this instance".

And therein lies the problem: far too many employers rely on dodgy (not a legal term!) advice from both internal and external HR advisors/consultants/lawyers who know far too little about the strict dismissal-related obligations imposed by a combination of the Fair Work Act 2009 and Australia’s state and Commonwealth anti-discrimination laws.

There is clearly no point putting your HR Department in charge of a performance review or disciplinary procedure if they don’t understand the difference between a person who is on certified personal leave and a person who simply refuses to return to work!

We see similar mistakes being made all the time when it comes to redundancies. Employers decide they want to get rid of someone and then simply announce they have been made redundant. 

Unfortunately, this almost always triggers an expensive and time-consuming unfair dismissal claim because the vast majority of Australian employees have a legal right to be meaningfully consulted before a final decision to declare their position redundant is reached by their employer. By the time the hapless employer contacts our team for help, it’s just too late because we can’t undo what’s already been done.

The solution is, in fact, quite simple: get advice from qualified experts before you do anything.

Relying on outdated HR processes – or naively thinking every member of your internal HR Department understands all the nuances of the Fair Work Act 2009 – will, more often than not, result in HR tragedy.