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An “absurd” defence of an unfair dismissal case, which a Fair Work Commissioner likened to a Monty Python sketch, has ended up being very costly for one employer, and provides an important lesson for any organisation involved in legal action.
The recent decision on costs in Somasundaram v Department of Education & Training,North-Eastern Victoria Region, handed down at the end of June, highlights the need for organisations to appreciate that in some circumstances they will not succeed in litigation. Whether in the role of applicant or respondent, it is an essential element of participating in legal proceedings to understand the difference between an appropriately maintained claim/defence or one which is without merit.
It is then essential for an organisation to take steps and make decisions based on appropriate legal advice, a coherent strategy and an honest assessment of the likelihood of success – and never on the desire to be “right” or because of “the principle.”
Somasundaram demonstrates just how horribly wrong it can go when a party remains entrenched in its position despite its better judgment – to the tune of almost $90,000.
The background of the case
Ms Somasundaram was a teacher at Sherbrooke Community School. She had previously made bullying complaints. In 2015, Ms Somasundaram’s employment at the school was terminated for “disgraceful, improper or unbecoming” conduct. Her apparent crimes? Airing a list of grievances at a school meeting, emailing complaints and criticisms of colleagues and the school’s leadership to the teaching distribution list, and then ignoring an instruction to cease. Ms Somasundaram accordingly filed an application for Orders to Produce against the Victorian Department of Education & Training (DET).
After the hearing had already begun, the DET conceded that the dismissal could be considered harsh and accepted that reinstatement was appropriate. The DET further withdrew the assistant principal’s evidence and other witness statements as it concluded that there was no need for hearings to continue.
However, despite these concessions, the DET attempted to maintain an argument that the teacher should not be reinstated because there had been an “irretrievable breakdown of trust and confidence” between the school and the teacher. The DET then sought to introduce new evidence and attempted to file new submissions as to what constituted harshness.
In July 2015, Commissioner Ryan determined that the DET was unreasonable in attempting to force the teacher to reply to its arguments and respond to its defence in circumstances where it had already conceded that the dismissal could be considered harsh.
Indeed, Commissioner Ryan considered it inappropriate that the DET had responded to the remedy application at all, given its concessions and acknowledgement that doing so was “without reasonable cause”, and concluded that the DET’s attempts to introduce new witnesses and evidence at a late stage in the proceedings was inappropriate. He therefore ruled that Ms Somasundaram’s dismissal was “harsh, unjust and unreasonable.”
In October 2015, the DET was ordered by FWC Deputy President Anne Gooley to reinstate the employment of Ms Somasundaram. In addition, Ms Somasundaram was awarded full back-pay of her salary to the date of her dismissal in February 2015.
So what did the DET do so wrong?
According to Commissioner Ryan’s first decision on costs in March 2016, the DET’s arguments that Ms Somasundaram should not have her job back and attempts to maintain that the DET had a valid reason for her dismissal were akin to the insistence of the shopkeeper in the much-loved Monty Python “Dead Parrot” sketch that the titular bird was not in fact deceased but was simply “resting”, despite the bleedingly obvious evidence to the contrary.
The DET may have been able to maintain this argument – if it had not already conceded that its decision for terminating the employment was harsh, and withdrawn evidence.
Commissioner Ryan also made reference to the Black Knight sketch, saying “The humour in both of those Monty Python sketches arises from the sheer absurdity of the situation portrayed. The same sense of absurdity is found in the actions of the respondent.”
Lessons for all employers
The FWC ordered that the DET pay $87,000 towards the legal costs of Ms Somasundaram. If the DET had accepted early on that it had harshly dismissed the employee and submitted to the FWC for sentencing, it could have saved almost $90,000. The lesson here? Decisions are ultimately decided on fairness, and organisations must reflect at every stage of a case on the reasonableness of their actions.
