28 November Keep calm and carry on: Don't make decisions based on emotion November 28, 2017 By Reef Admin Unfair dismissal 0 An agency has snatched defeat from the jaws of victor after making an emotional decision to dismiss an employee via text message, despite the employee already facing the prospect of redundancy. By Matthew Robinson – Partner at FCB Workplace Law The case is a reminder to real estate employers to avoid making important staffing decisions when emotionally charged and without knowing all the facts. On 1 March 2017, a real estate agent was advised that his position at the agency was being made redundant. He was offered two alternatives for redeployment, both of which he found to be highly unattractive and seemed to have been designed to push him out the door. The very next day, the director of the agency became aware of a number of matters relating to the employee’s conduct. These matters included the employee allegedly misrepresenting himself to suppliers as having ownership in the business, accepting secret cash payments and making unauthorised financial offers. The evidence supporting some of the allegations could only be described as flimsy at best. The director assessed the allegations were serious and made numerous attempts to call the employee to give him the opportunity to explain himself. The employee ignored the calls, which served to further enrage the director. What followed was a series of heated text messages in which tension quickly escalated: 1.01pm – “tried calling … please respond asap” 1.43pm – “you have abandoned your employment” and “you are stood down pending investigation” 2.02pm – “you are terminated effective immediately for misconduct and insubordination” The Fair Work Commission found that the real estate agency could be said to have “genuinely held a belief” that the employee’s conduct was serious enough to justify immediate dismissal. However that belief was not based on “reasonable grounds”, as none of the matters had been subject to any sort of investigation and nor had they been properly put to the employee for his response. This lack of investigation and deficiencies in evidence led to a finding that the employee was unfairly dismissed. Don’t risk it Emotions can run high when faced with evidence that an employee has potentially engaged in unprofessional or fraudulent conduct. This can particularly be the case for real estate agencies, where teams are often tight knit and an employee’s unscrupulous actions really hit home. In these situations, we often see formal processes fly out the window – and a clearly winnable case along with it. No matter how serious the allegations and how convincing the evidence, always ask yourself: “Does this need to happen right now? Is pushing the employee straight out the door, without any degree of investigation, worth putting my business name and reputation at risk?” While in this case only two weeks’ compensation was ordered (as the Fair Work Commission found the relationship would not have continued much longer), the risk is to your business reputation. Remember, Fair Work Commission decisions are a publicly available record that can potentially leave you open to criticism about your employment practices and actions. If emotions are running high, stop, reflect and take a considered approach. And take the time to access specialist advice from REEF before taking action. It could save your business reputation and protect your financial interests. Matthew Robinson is Partner at FCB Workplace Law and an Accredited Specialist in Employment & Industrial Law with the The Law Society of NSW. FCB Workplace Law regularly advises and acts for real estate agencies in post-employment litigation. He can be contacted at firstname.lastname@example.org. Related Don't be left in the dark: New industry award starts on 2 April 2018 After a long battle, the Fair Work Commission has now finalised the four-year review and the Real Estate Industry Award 2015 will commence on 2 April 2018. Big changes are ahead. Here's what you need to know. Keeping post-employment restraints intact Enforcing a post-employment restraint can be extremely complex – and expensive! Matthew Robinson provides tips to help members through the process and maximise their chances of success. 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