Why the Timing of Dismissals Must Be Carefully Considered

The CEO has alleged that one of the reasons he was terminated was to deprive him of the opportunity to file an unfair dismissal claim.  

Facts of the Case

The Australian Federation of Islamic Councils (AFIC) dismissed its CEO, just seven hours before he completed his 12-month minimum employment period. Ultimately, this meant he did not have access to the unfair dismissal jurisdiction.

The CEO alleged that his termination was an unlawful adverse action designed to stop him from exercising his workplace rights — i.e. to bring an unfair dismissal claim.

On 28 July 2024, AFIC received a complaint from a new executive assistant (EA), alleging that during their first in-person meeting, the CEO made comments such as, "the camera really doesn't do you justice," and that “he held prolonged eye contact that made her feel uneasy”. In response to the allegations, AFIC stood down the CEO pending an external investigation.

On 28 August 2024, the external investigator conducted an interview with the CEO. Soon after, AFIC held an emergency meeting on 2 September 2024 to discuss the draft findings of the investigation, which found that the “CEO’s conduct was inappropriate on the balance of probabilities”. Based on these findings, the council voted unanimously to summarily dismiss Mr Dabboussy. The dismissal was confirmed the following day at 4:40pm, just hours before Mr Dabboussy would have completed his minimum employment period.

The CEO filed a general protections claim, asserting that the timing of his dismissal was influenced by a desire to ensure that he could not make claim for unfair dismissal and that this was also a substantial and operative reason for his dismissal. 

Findings 

Judge Nicholas found that the evidence "strongly suggests that the executive committee meeting was arranged with great haste" when the investigator's report had not yet been finalised and the CEO had already been stood down. The Court held the main goal of AFIC was to fire the CEO before 4 September, so he wouldn't have the chance to file an unfair dismissal claim.

The CEO argued that his dismissal had significant financial implications, including the possibility of losing his family home. The Judge accepted that finding alternative employment might be challenging due to the nature of the allegations and agreed that reinstatement would minimise the financial harm to the CEO while his general protections claim was determined.

Impact of the Court’s Decision

Judge Nicholas found the evidence strongly suggests an executive committee meeting was arranged with great haste at a time when an external investigator's report into the allegations of sexual harassment had not even been finalised, and after the CEO had already been stood down. There is a strong inference available that the executive committee meeting was convened for the purpose of facilitating termination of the CEO's employment before his minimum employment period ended to deny him the opportunity to make an unfair dismissal application. 

While it may be assumed that the findings from the investigation were reasonable grounds for summarily terminating the CEO's employment, and were the principal reason for his dismissal, the CEO had established a prima facie case that the timing of his dismissal was influenced by a desire to ensure he could not make an unfair dismissal claim, and that this was also a substantial and operative reason for his dismissal. Consequently, his Honour was persuaded the CEO had established a prima facie case of adverse action and found it appropriate to order his interim reinstatement until the general protections claim is resolved.

Next Steps 

ClubsNSW will keep member clubs updated on the outcome of the substantial hearing. 

Some key takeaways for members include:

• Rushing to terminate an employee nearing the end of their minimum employment period can lead to significant legal risks.
• The timing of dismissals must be carefully considered, and decisions should not be influenced by a desire to prevent employees from accessing their rights under unfair dismissal laws.
• Employers must document reasons for termination and ensure they are based on legitimate performance or conduct concerns.
• In cases where there are concerns about an employee’s performance or conduct, employers should monitor and address issues well before the end of the minimum employment period to reduce the risk of adverse action claims.