FWC Criteria for considering harshness unfair dismissal – The Fair Work Act current consists of around 900 sections when you include all the aa, ab etc, it is therefore unreasonable to expect HR professionals and mangers to be fully conversant with the entire act.

One section that is vitally important to understand and adhere to when dismissing an employee is section 387 – Criteria for considering harshness.

The recent case of Fraser Murray v Reliable Petroleum Pty Ltd [2017] FWC 3552 highlighted the Fair Work Commission’s examination of section 387

In this case  the applicant Mr Frazer was employed by Reliable Petroleum as a tanker driver.  He worked as a fuel tanker driver for 39 years, without previous incidents.  On On Monday 5 December 2016, he was detected by a fixed speed camera located on the South Eastern Freeway travelling down from the Adelaide Hills travelling at 88 kph in a 60 kph zone. Mr Frazer was dismissed by Reliable Petroleum for serious misconduct.

At the hearing Commissioner Hampton considered section 387;

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

Commissioner Hampton found that the Mr Frazer’s conduct essentially involved him not paying full attention to multiple change of speed limit signs and slowing at the point required where the speed limit changed to 60kph.  While finding that this was not deliberate, this was a serious oversight in all of the circumstances.

In relation to the respondent’s policies and procedures Commissioner Hampton found that they had been explained to the applicant and that he understood them. The policies themselves were also found to be reasonable and appropriate given the nature of the industry and the public, personal and business risks associated with the work of a heavy vehicle driver.

After considering all the factors and applying the relevant principles Commissioner Hampton found there was a valid reason for dismissal.

FWC Criteria for considering harshness unfair dismissal

Section 387(b) – whether the Applicant was notified of the reasons for dismissal.

The Commissioner found that the Applicant was notified of the reasons for his dismissal

Section 387(c) – whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct.

The Commissioner found that the applicant was aware of the allegations about his conduct and was given a reasonable opportunity to respond.

Section 387(d) – any unreasonable refusal by the respondent to allow the Applicant a support person.

This was not in issue as the the applicant was afforded an opportunity to have a support person present at the meetings leading to the dismissal and this occurred.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Murray– whether he has been warned about that unsatisfactory performance before the dismissal.

The Commissioner found that the dismissal was fundamentally related to conduct.

While not stated in the judgment, Reliable Petroleum provided evidence that the applicant had never been previously warned about unsatisfactory performance, however this was not a factor in this matter as the dismissal related to misconduct and not performance issues..

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Not in issue

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Sections 387(f) and (g) were considered together,  the Commissioner held that Reliable Petroleum was a large business and has access to dedicated human resources expertise..

Section 387(h) – other matters considered to be relevant.

Commissioner Hampton gave careful consideration to other factors that were considered to be relevant such as

  • The impact of the dismissal upon the applicant given all of the circumstances.
  • Whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct
  • The economic and personal consequences resulting from being dismissed.

Commissioner Hampton outlined the competing considerations in this matter including:-

  • include the seriousness of the incident, the potential impact upon reputation and public risk and the extent of the speeding and the context in which it occurred
  • the fact that the applicant performed driving functions before and after the speeding incident without other concern; and
  • the fact that the applicant had a very long history of driving without previous speeding offences.

In identifying those considerations Commissioner Hampton also noted that the respondent was right to be concerned about the potential for adverse publicity if it did not take appropriate action against the applicant in circumstances where another incident occurred into the future and other road users or infrastructure was involved in any such incident.

Commissioner Hampton found that, while the conduct could not be condoned, it did not mean that dismissal was the only option and that it fell to the Commission to ultimately determine the fairness of that response in all of the prevailing circumstances.

After considering all the circumstances the Commissioner found that there were a number of factors that made the dismissal of the Applicant harsh. These include:

  • The exact nature of the conduct and the circumstances in which the incident took place including that it was a single incident involving inattention rather than a deliberate or reckless action, and objectively there was little room for concerns that the behaviour would be repeated;
  • the applicant’s immediate recognition that his conduct was not appropriate and his genuine contrition;
  • the likely impact upon the applicant of the dismissal given his age and industry service;
  • the absence of any actual reputational or other consequences for Reliable Petroleum; and
  • his work history, the nature of the work he had been assigned over that time, and the nature and circumstances of his employment

Commissioner Hampton found that reinstatement of the applicant was appropriate in all the circumstances.

Lesson for employers

  • The punishment must fit the crime
  • Other factors must be taken to account

For a more detailed examination of this case have a look at the article by Anderson Fredericks Turner  lawyers

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Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations



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