Employers must be clear and direct with Employees

Clubs of all sizes are reminded that when providing employees with warnings or discussing important employment related matters, clubs must do so in a clear and direct manner. This is despite any social or cultural awkwardness that may arise.
This reminder is timely after the Fair Work Commission (the FWC) in a [recent decision](http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2023/1053.html) ordered a small business to compensate a long-serving sales manager who was terminated via text message and was 72 years of age at the time.
The general manager of Highway Enterprises Pty Ltd, who was of Chinese ethnic background raised his concerns with the sales manager after one month of managing the company, telling him that the quality of his work was “below acceptable level”. After a month the general manager asked him to return the company credit card and told him that he could only use the company car at the company’s discretion.
After a meeting with the sales manager to discuss the reduction of his hours, the general manager texted the employee that “per our discussion on Monday, you don’t need to come in anymore” to which the employee replied, “are you dismissing me?”. Following this the general manager told the sales manager “your role is reduced to an honorary role”. The general manager further told the sales manager that he was “welcome to come in” but was not required to.
The employee then brought forward an unfair dismissal claim. The company in its defence claimed that “respect for older persons in the ethnic Chinese culture meant that it was inappropriate for (the general manager), being a younger person, to use direct or formal language by way of warning to the sales manager”.
The FWC held that the company did not comply with the Small Business Fair Dismissal Code as it did not give the sales manager a reason for dismissing him and the discussions did not have the character of a warning. The FWC noted that the general manager was however “not to be criticised for respecting his cultural norms nor respecting his cultural norms”.
The FWC reaffirmed that employers have an obligation under “Australian law, to communicate important matters concerning a person’s employment directly and clearly, no matter how well intentioned or culturally awkward”.
While the FWC found that there was a valid reason for dismissal linked to the sales manager’s poor performance, the lack of procedural fairness afforded to the employee meant that the dismissal was harsh.