Not-for-profit Law
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Not-for-profit employee "unfairly dismissed" during notice period

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Mr Christopher Patterson v Re-Engage Youth Services Incorporated [2018] FWC 20

Facts

Christopher Patterson was employed as a case manager by Re-Engage Youth Services (Re-Engage), a not-for-profit organisation that assists vulnerable young people from disadvantaged socio-economic backgrounds. His employment was a series of rolling fixed-term contracts, which started in June 2015 and finished in July 2017, when he claims he was unfairly dismissed.

Mr Patterson claims his dismissal took the form of a forced resignation. In the alternative, if he was not dismissed by forced resignation, Mr Patterson claimed he was dismissed by the decision of his employer. He sought orders for compensation. Re-Engage argued Mr Patterson was not dismissed, but resigned from his employment. The Fair Work Commission (FWC) had to consider three key issues: first, was Mr Patterson dismissed within the meaning of the Fair Work Act 2009 (Cth) (Fair Work Act), second if so, was the dismissal unfair within the meaning of the Fair Work Act, and third, if so, what is the appropriate remedy?

The facts of the case centred on Mr Patterson’s request for annual leave. His nephew died suddenly in Thailand in April 2016. In December 2016, Mr Patterson’s wife booked airline tickets for her and Patterson and his nephew’s parents to have a family holiday in Thailand on a date close to his late nephew’s birthday. Mr Patterson intended to take the trip from 10 to 23 August 2017 as it was a family holiday of personal significance.

However, the holiday dates was in school term, a time when the Re-Engage centre where Mr Patterson worked, would be busy with students. He knew it was “not ideal” to be away during term time. Mr Patterson was advised via email on 5 June 2017 that his leave request was refused because it was during term time. Patterson’s flights and holiday accommodation had been booked before he requested leave.

On 19 June 2017, Mr Patterson took one week’s sick leave with a medical certificate, due to the stress of having his leave refused.

On 30 June 2017, Mr Patterson was due to finish work at 3pm. After lunch, he went for a long walk and did not return to work, leaving a colleague by herself in the centre, contrary to expectations relating to staff safety and security. FWC Deputy President Anderson accepted Patterson’s evidence that he was trying to clear his mind and was not thinking clearly.

On 3 July 2017, Mr Patterson again took one week’s sick leave with a medical certificate. While he was absent from work, Re-Engage CEO Suzanne Curyer emailed Mr Patterson requesting he attend a meeting with her and Team Leader, Lee Anderson. The purpose of the meeting was to discuss Mr Patterson’s work performance relating to unauthorised absences from the workplace and breaches of policy and procedures with regard to advising the line manager of the need to take personal leave.

Mr Patterson considered the email to represent a form of performance management. He was at work on 10 July 2017, the day of the scheduled meeting. That morning he wrote an email to Ms Anderson and Ms Curyer informing them he was resigning with three weeks’ notice. After seeking advice from Re-Engage’s external human resource consultants, Ms Curyer accepted Mr Patterson’s resignation on the same day. However, she advised Mr Patterson that he was only required to provide two weeks’ notice and his final day of employment would be 10 July, because she was not confident he would demonstrate professionalism and reliability in his final two weeks. Mr Patterson was paid two weeks in lieu of notice by Re-Engage.    

Decision

In handing down his decision in January 2018, Deputy President Anderson found that Mr Patterson’s dismissal was harsh, unjust and unreasonable. He took into account Mr Patterson’s record as a valued and exemplary employee. The manager of the centre, where Mr Patterson was based, David Burt, did not wish to lose Mr Patterson over an annual leave dispute. Mr Patterson’s unauthorised absence on 30 June warranted sanction, but not dismissal. There was no reasonable basis for the employer to conclude that Mr Patterson would not professionally or reliably remain an employee until the date of effect of his resignation. Deputy President Anderson also found serious failures of procedural fairness on 10 July. The employer provided Mr Patterson four days’ advance notice of the 10 July performance management meeting and no advance warning was given concerning his alleged failure to lodge an annual leave form. The subsequent cancellation of the 10 July meeting and then its rescheduling at 13 minutes’ notice was evidence of poor and confusing human resource practice.

However, Deputy President Anderson took into account the fact that Re-Engage is a not-for-profit association in making his findings. It was not a large sophisticated employer and had limited human resource capability. This imposed practical limits on Re-Engage to accommodate or tolerate conduct that may put at risk its contractual relationship with the State Department of Education and Child Development (the Department) to provide educational services. However, there was no evidence the Department would have held Re-Engage accountable had it taken a difference course with Mr Patterson. Furthermore, operational and executive staff are required to perform a multitude of tasks and there was no dedicated human resources manager. Having operations in regional locations added extra difficulty to managing operations from Adelaide.

Re-Engage was ordered to pay Mr Patterson $1,324.15 to cover his loss of earnings had he worked his three weeks’ notice period. 

Key takeaways

Although Deputy President Anderson considered the not-for-profit characteristics of Re-Engage, not-for-profit organisations must still follow prudent and lawful employment processes. In this case, despite the challenges of stretched resources, Mr Patterson's dismissal was found to be harsh, unjust and unreasonable and compensation was ordered. 

It is important not-for-profit organisations understand the notice periods of their employees. Re-Engage was caught out when it shortened Mr Patterson's notice period from three weeks to two weeks.

The National Employment Standards set minimum periods of notice of termination, which must be provided in the case of any termination of employment, unless a relevant exception applies (eg. in the case of summary dismissal). If you do not wish to have your employee serve the period of their notice, they must be provided with payment in lieu.

If your employee is covered by a modern award or enterprise agreement or has a written contract of employment, that award, agreement or contract may specify a period of notice that you must comply with.

It is also a timely reminder to not-for-profit organisations of the importance of understanding their obligations with respect to performance management and disciplinary processes. Laws around termination of employment are complex, so it is important employers seek legal advice before sacking an employee.  

For further information on the termination and resignation of employees in not-for-profit organisations, read Not-for-profit Law’s Termination and Resignation page.

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