Compensation ordered despite employee’s discriminatory conduct

13 May 2022

The importance of procedural fairness has been highlighted in the recent unfair dismissal judgment of Ning Li v PPD Australia Pty Ltd [2022] FWC 496.

The employee, a senior import & export coordinator for PPD Australia, was first given a verbal warning following three complaints from female job candidates, alleging the worker had asked them ‘when they were planning on having children’ during a job interview.

Around the same time, the employee was the subject of three other instances of misconduct, including an attempt to undermine a female manager’s decision following an unsuccessful application for a promotion, speaking in a disrespectful way to his female line manager, and refusal to mentor a female job candidate.

PPD Australia issued a warning letter and Performance Improvement Plan (PIP) to the employee’s home, a day after the employee commenced planned annual leave. The letter was the first time that the allegations relating to the employee’s communications with his managers were put to him.

Upon his return to work, the employee met with his HR Manager and asserted he would not participate in the PIP. Two days later, a group of managers (not including the employee) were sent an email informing them that the employee would be finishing up with the company within days.

The employee became aware of his termination when one of the managers forwarded him the email, wishing him well in the future. After seeking an explanation from his HR Manager, he was informed that he could participate in the PIP if he wanted to, to which he again declined. The worker was sent a termination letter three days later.

The worker lodged a claim for unfair dismissal in the Fair Work Commission, seeking reinstatement to his position. Deputy President Mansini found that the persistent refusal to participate in the PIP was a valid reason for dismissal, however the dismissal was unfair due to the employee not being given a proper opportunity to respond to the allegations. Importantly, the warning letter did not clearly set out the risk of dismissal.

Finding reinstatement to be inappropriate, DP Mansini ordered DPP Australia to pay the employee $12,932.52 (plus super) in compensation. The compensation was calculated as three months wages (the proposed length of the PIP), with a 30% reduction due to the employee’s misconduct and failure to mitigate his risk of dismissal.

EMA Legal can assist employers with all aspects of performance management and dismissal claims from employees.

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