From a colleague accidentally breaking the news to you, to turning up to work to see that your company has closed down. Two HR experts share the worst firing fails they’ve come across.
What’s the worst way to find out you’ve been fired?
The Fair Work Commission recently heard the unfair dismissal case of an employee who received an email from a senior colleague expressing gratitude for his services and wishing him well for the future after learning he was being let go. The only issue was that no one had told the employee in question yet.
The organisation made the decision to terminate the worker’s employment in September 2021 after he refused to go on a performance improvement plan (PIP). The employer deemed this necessary after the employee, an import and export coordinator, asked a discriminatory question in a job interview process (he asked a candidate when she was planning to have children).
It was also noted that he refused to mentor new staff, communicated disrespectfully with a manager and attempted to undermine his manager after being rejected for a promotion.
While the deputy president presiding over the case, Amanda Mansini (now Federal Circuit and Family Court judge), agreed with the employer’s reasons for dismissal, she took issue with the “deplorable” way in which the employee learned of his termination.
She also noted other procedural fairness failings, citing that a meeting held to give the employee a chance to respond – a critical step in the termination process – was merely an act of “going through the motions”. The decision to terminate employment had already been made at this point, as the HR manager was putting the process in place and the employee’s colleagues were aware he was being let go.
The employee went to the FWC seeking reinstatement and compensation, claiming the PIP request was “workplace bullying and oppression”. He said he’d shown remorse for asking the job candidate about her intentions to have children when given a verbal warning.
Mansini determined that while the employer hadn’t fulfilled its obligations to offer an opportunity for the employee to respond, reinstatement wouldn’t be a possibility due to the fractured relationship. Instead, she ordered the employer to pay $12,932 (plus super) in compensation.
The lesson to HR? Even if you have valid reasons to dismiss an employee, it could all come undone if you skip critical steps.
HRM put a call out to hear about other botched terminations. Here’s what two HR consultants had to say.
Locked out of the building
Sean Wilson, CEO at BetterHR, an HR and employment law consultancy, can recall many examples of terminations gone wrong, but there’s one that stands out.
“There was one where a person turned up to work and went to use their swipe card [to get into the building] and it didn’t work. He called up his manager and found out he’d been fired,” says Wilson.
“The employer thought the person was a bully. A lot of staff had put in verbal complaints. But when we investigated it, there’d been no official investigations into any of the accusations. Everybody pretty much just said, “Oh they were a bully. They used to harass us and play terrible practical jokes on people that weren’t funny.’ They’d been complaining about this for a long period of time and a lot of workers pressured management to do something about it.”
“You need to understand what the risks are and try to take the emotion out of it, because it’s nothing personal.” – Cathy Ngo, HR and communication consultant
Wilson says this pressure meant that the employer skipped crucial steps of the process and, as a result, found themselves in front of the employment tribunal with an order to reinstate the worker.
“Then there’s an argument to be made that if you reinstate that person, are you just going to terminate them again anyway?”
If a second termination was to occur, Wilson warns this is when you can get into unlawful termination territory.
“An employee could make a general protection claim [and state that] you fired them for previously taking them to court or to the commission,” he says. “That’s a nightmare because there are uncapped damages in that instance.”
An unfair dismissal applicant’s damages are capped at 26 weeks’ of the annual wage of the employee. However, unlawful termination compensation is uncapped, so employers don’t know what they could be on the hook for.
“For example, that could mean someone thinks you’ve fired them because they’re pregnant or a member of a union, or because of their religion or sexual orientation.”
Wilson impressed the importance of solid recordkeeping, stating that this is the area “where most employers fall over”. There is a reverse onus of proof in a general protections case, he says, so you need to have enough solid evidence to prove that your decision to terminate was lawful. Locking them out of the building instead of having a face-to-face conversation is unlikely to look good in the eyes of a judge or commissioner.
Firing an employee while they’re on annual leave
Cathy Ngo, an HR and communication consultant, has an interesting story about an employee who was fired because their manager thought they were a no-show, but they were actually just on annual leave.
“The employee didn’t put their leave in through the system. They had just verbalised it quite some time before they left.
“With the pace of the business, things happen and people forget. And so when the employee didn’t rock up to work, the manager was like, “How come she’s not here?” And then they tried to call and text her, but nothing went through. And then they called the next day. Again, the call didn’t go through [as the employee was out of range].”
“In my experience, most employers are genuine people trying to do the right thing. The problem is that people also hate conflict.” – Sean Wilson, CEO BetterHR
The next day, assuming the employee had abandoned their job, the manager started the process of termination.
“Even if it was a genuine abandonment deployment, the manager didn’t follow the correct process. Employers have to exhaust all contact avenues. So that would mean contacting their emergency contact, or emailing them. You could even send them a Facebook message… there are so many ways to contact someone these days.”
This particular case didn’t go to an unfair dismissal, but Ngo says she’s experienced many cases where this same assumption had been made and it has been taken to the FWC.
See the Fair Work Ombudsman’s infosheet on abandonment of employment here.
The workplace doesn’t exist anymore
Ngo has an interesting termination story herself. When she was 19, she worked as a casual employee at a skincare company. When she turned up to open the store one day, she was surprised to see that it no longer existed.
“When I turned up, I could see it was all black inside… the windows had black sheets over them. I was so confused.”
Luckily, the owners also had a clothing shop that was close by, so Ngo went to speak with them.
“I said, “I was meant to open the store. What’s going on?” And she said, “Oh, no one told you that it closed down? Basically I was dismissed without being officially dismissed.”
Ngo was offered the chance to go and work for one of the stores in a different location, but the owners wanted her to go through her probation period again.
“I didn’t think that was fair. It was the same legal entity just in a different location. So I just thought, ‘Nope. I’m out of here.'”
Fired by text message
Wilson says dismissals via text message are very common.
“It’s particularly common in industries like building and construction, or the transport industry. [Workers will get a text] that just says, ‘Don’t bother coming in tomorrow.'”
This is a really risky way to terminate employment, as it can work against an employer if the disgruntled worker chooses to take the matter to the FWC.
A 2019 case saw a casual security guard awarded $12,500 for the employer’s mishandling of his termination, which was, in part, to do with what the judge called an “unnecessarily callous” handling of a dismissal.
Terminations should always occur in a face-to-face setting, the Commissioner added, unless there is “genuine apprehension of physical violence or geographical impediment”.
Why do some employers terminate employment so badly?
Both Ngo and Wilson say that some employers take things too personally. When emotions take over, it’s easy to skip crucial steps in the termination process.
Wilson says employers are also often conflict avoidant and aren’t well equipped to have difficult conversations.
“In my experience, most employers are genuine people trying to do the right thing,” says Wilson. “The problem is that people also hate conflict. Also, some employers are extremely busy, especially small business owners. These are people who are struggling with some of the most complex [employment] laws in the world. Plus, [they’re often experiencing] a huge amount of anxiety.”
Most employers don’t want to have to tell someone they’re fired, he says.
“They start to think about whether [the employee they’re firing] is going to be able to put food on the table. Or do they have a mortgage? Genuine people think about these things, but they should be making black and white decisions about if that person is right for their organisation.
“Are they competently doing the position? If they’re not, and they’ve had plenty of warnings, then you just have to do it. If you don’t, you’re just kicking the can down the road.”
Ngo encourages HR to be aware of their own biases.
“If the HR practitioner is a business partner, and they’re closely working with the leaders, then it’s likely they’ll take the employer’s side. Then it’s hard to look at things from a broader perspective. It always helps to step back and look at the facts.”
Wilson says it’s incredibly important to seek out expert advice, as “not all HR managers have done an employment law degree”. He also says to keep the following in mind.
“If you have less than 15 employees, then you have small business considerations. If you have 15 or over, then you have big business considerations. With under 15 employees, make sure you look at the small business dismissal code before proceeding with a termination.”
Working in HR is often exciting and fun, but this is one of the least fun parts of the job.
“That’s why people take shortcuts,” says Ngo. “You need to understand what the risks are and try to take the emotion out of it, because it’s nothing personal. You need to look at it as objectively as possible. Because going to the commission is no fun.”
What’s the worst firing story you’ve heard? Let us know in the comment section below.
Want to get better at having difficult conversations at work, such as telling someone you need to let them go?
AHRI’s short course can help. Sign up for the next session on 20 June.