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Employment law strangeness

The Fair Work Commission recently handed down a decision that was likely to have annoyed both sides of the legal fence: employers and employees.

The employee in the case, Ms Nilson, was employed by Geelong Kindergarten Association as a supervisor. She had 39 years of unblemished service with them, until one day two 4-year olds managed to leave the kindergarten and wander the streets until they were discovered by a nearby school.

The kindergarten terminated Ms Nilson for failing to supervise the boys or prevent their escape and for failing to show remorse or accept responsibility for the incident.

Ms Nilson sued for unfair dismissal.

In a ruling sure to surprise employers (and perhaps parents) everywhere, the Fair Work Commission ruled that Geelong Kindergarten Association had been unfair to dismiss Ms Nilson. It ruled that, although there was a valid reason for termination and there were no significant problems with how the kindergarten handled the process, it was nevertheless unduly harsh for the kindergarten to terminate an employee of 39 years’ good standing over the incident in question.

But the story doesn’t end there. In fact, it takes a surprising turn.

Despite finding that Ms Nilson has been unfairly dismissed, the Commission noted that it had a discretion as to whether it would order any remedy in her favour. In the circumstances of this case, the Commission chose not to. Although Ms Nilson had been unfairly dismissed, she would not be reinstated and she was not entitled to compensation.

This case is a good example of the complications that can arise in situations where an employer wishes to terminate an employee’s employment or where an employee believes they have a good claim for unfair dismissal.

If you have any queries in relation to your workplace rights or obligations, please feel free to contact FWO’s employment solicitor Jay Clowes on 6650 7016.

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