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A case on unfair dismissal during Covid-19

2020 has been quite a year, with COVID19 turning everything upside down. Along with the virus, uneasiness and uncertainty spread all around the world. For many Australians, job security became a real issue. The Fair Work Commission (FWC) has recently demonstrated its view on unfair dismissal in the context of COVID19.

The FWC's view

In the recent case of Clair Petersen v Allpet Products, the FWC made it clear that employers are required to consider the consequences of the pandemic on an employee’s ability to do their job before dismissing an employee.

What happened in this case?

In this case, the employee failed to meet reporting requirements of her customer-service role for Allpet. She was given multiple warnings about her failure to meet the deadlines. The employee was the only employee in South Australia and was also the employer’s brand ambassador for Queensland. However, due to the pandemic, it became virtually impossible for the employee to perform her duties. She was unable to travel interstate to meet with her Queensland customers and had the additional role of monitoring the effects of COVID-19 on a daily basis.

Upon returning from her Easter break, she was terminated by email due to her inability to provide satisfactory service to clients. After taking the case to the FWC, it was held that her dismissal was unfair. In dismissing the employee, Allpet failed to recognise the impacts of the pandemic on her capacity to do her job.

Lessons for employers

This case shows that employers must take into account the circumstances of the pandemic on an employee’s role before dismissing them for unsatisfactory performance. Notice of poor performance given to employees will be irrelevant if the employee’s tasks are unachievable. This case acts as a firm reminder to employers to be considerate of the mental, physical and practical effects of COVID-19 on their employees.


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