Employers should be aware of three recent cases where employees were found to be unfairly dismissed.

In Anderson v Thiess Pty Ltd [2014] FWC 6568, the employee was summarily dismissed as a result of him sending an email through the work email system that was considered to be highly offensive to persons of the Muslim faith. Although FWC found that the email was in breach of the Thiess policies and was considered to have the potential to cause Thiess considerable reputational harm, the FWC awarded Mr Anderson $28,000 in compensation on the basis that the dismissal was harsh and unreasonable. The Commission found that:

  1. The dismissal was harsh because Mr Anderson was 65 years of age and would have difficulty obtaining other employment;
  2. The dismissal was unreasonable as Thiess relied too heavily on a previous verbal warning given to Mr Anderson for engaging in the same conduct; and
  3. Thiess did not give Mr Anderson sufficient time to accept that the contents of his emails were inappropriate in the Thiess work environment and to apologise during the show cause process.

 

To point 1 – Harsh is a subjective judgement; however it is wise for employers to put themselves in the position of the employee when considering the circumstances and the likelihood of an application to the FWC. Having said that the harsh hurdle should not be a bar to employers taking dismissal action.

To point 2, when taking the decision to dismiss an employee, employers must ensure that they have followed the correct and acceptable procedures, failure to do so could result in a breach of procedure fairness and a costly loss at the FWC.

In Camilleri v IBM Australia Limited [2014] FWC 5894 , the employee was dismissed following an internal audit that revealed he had made 141 improper expense claims for nights when he was not actually working away.

The Fair Work Commission accepted that IBM had a valid reason to terminate the employment but found that the dismissal was nevertheless unjust because there was an excessive delay between Mr Camilleri’s conduct and the dismissal and IBM failed to adequately consider Mr Camilleri’s 17 years of service and his offer to reimburse IBM for the expenses. The Commission ordered Mr Camilleri’s reinstatement and awarded him 50% of his lost remuneration.

It is important for employers to note that if they are considering dismissing an employee that it should be done in a timely matter that is reflective of the reason/s for the dismissal.  In addition failure to consider years of service and attempts to make up for the wrongdoing could suggest that the decision was already made prior to discussing the matter with the employee, again a breach of procedural fairness.

In Dent v Halliburton Australia Pty Ltd [2014] FWC 5692, Mr Dent was dismissed for breaching the company’s driving safety policy as a result of speeding in a company vehicle and using his mobile phone while driving.

Two Halliburton employees provided evidence that they witnessed Mr Dent talking on the phone and exceeding the speed limit of 5 km/h when he entered the company’s yard. At the time of the incident, Mr Dent was already subject to a first and final warning for driving while speaking on a mobile phone.

The Fair Work Commission determined that there was insufficient evidence to conclude that Mr Dent was using his phone while driving, but accepted the speeding had occurred, which provided a valid reason for his dismissal. Despite the finding that the speeding conduct did occur, the Commission concluded that the dismissal was unfair because Mr Dent was not given sufficient notice of the disciplinary meeting, and therefore was denied a meaningful opportunity to respond to the allegations. Mr Dent was awarded compensation equal to 11 weeks’ wages (less earnings from other work).

This is an interesting decision in that the FWC accepted that Mr Dent was speeding relying on untrained witnesses to estimate the speed. However as the judgement indicates Mr Dent was not afforded procedural fairness in regard to not being given sufficient notice of the disciplinary meeting and the denial of the opportunity to respond to the allegations.

The right to be heard is not negotiable.

In each of these cases a through well conducted investigation may have produced a different and less costly outcome for the employer.

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