Sally is employed on a permanent basis with Company X as a cashier. She has worked there for 2 years. Company X is a food and beverage company that sells to the local community. Company X had a clearance sale and there was a special on their 2litre ice cream which was selling out fast. Sally had intentions of buying a 2litre ice cream but because they were so busy due to the clearance sale she had decided to put a 2litre ice cream aside for herself in the lunch room fridge that she was going to buy before they closed the shop. This goes against Company X policies which all employees are aware of. A manager of Company X visited the lunch room and found the 2litre ice cream left in the fridge and asked whose it was. When Sally indicated it is hers, the Manager asked for her purchase slip. Sally indicated she does not have one as yet as she planned to pay for it before they closed. The manager became very angry and said Sally wanted to steal the ice cream and is a thief. The manager asked her to leave her cash register, pack her belongings and leave the premises immediately and not return back to work again. She subsequently was fired without pay and no disciplinary hearing was held.

Question

Assignment Topic
In Labour Legislation, fairness in dismissals is determined by procedural and substantive fairness. Considering the above case scenario, critically and briefly argue the unfairness of Sally’s dismissal by referring to:

***Guidelines in cases of dismissal for misconduct ***
Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to,
the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

Answer 1

Sally's dismissal raises significant concerns regarding both procedural and substantive fairness as outlined by labor legislation. To critically analyze the unfairness of her dismissal, we can apply the guidelines for determining unfairness in dismissals for misconduct.

(a) Contravention of Workplace Rules

Sally did indeed contravene a workplace rule by putting a 2-litre ice cream aside for herself, which is against Company X's policies. Thus, the first step in assessing her dismissal acknowledges that a rule was contravened.

(b) Evaluation of the Contravened Rule

(i) Validity and Reasonableness of the Rule

The rule against reserving products for oneself appears reasonable in the context of maintaining fairness to all customers, especially during a clearance sale when items are moving quickly. However, the rule must also balance employee rights. Given that Sally intended to purchase the ice cream, the managerial response may be viewed as disproportionate to the perceived misconduct.

(ii) Employee Awareness of the Rule

As an employee who has worked at Company X for two years, Sally is likely aware of the policy against setting items aside for employees. Thus, she meets the criteria for awareness of the rule. However, the context of a clearance sale and her intention to pay complicate matters, suggesting some level of understanding or leniency might be expected from both the management and the employees.

(iii) Consistent Application of the Rule

An essential aspect of the inquiry is whether the rule has been consistently applied. If other employees have reserved items in the past without facing severe consequences, Sally’s case raises concerns of inconsistency and potential discrimination in how this rule was enforced. The manager's extreme reaction may indicate that policies are not evenly applied across the workforce.

(iv) Appropriateness of Dismissal as a Sanction

Finally, the appropriateness of dismissal as a sanction requires careful consideration. Dismissal is typically seen as a harsh response to misconduct, especially for a first offense. Since Sally had not yet been previously warned about her behavior and considering her intention to pay, firing her appears excessive. A lesser penalty, such as a warning or reprimand, would seem more suitable for such an infraction.

Conclusion

In conclusion, Sally's dismissal lacked both procedural and substantive fairness. While she contravened a workplace rule, the nature of the rule, her awareness, the inconsistent application of the rule, and the severity of the punishment all contribute to an argument that her dismissal was unfair. The absence of a disciplinary hearing further violates procedural fairness, suggesting that the company’s actions were hasty and lacking in due process. Therefore, Sally's dismissal can likely be contested on grounds of unfair treatment under labor legislation.