Workplace Misconduct Investigation Sydney NSW –  Recently at the Fair Work Commission the reinstatement of an employee was ordered in a misconduct matter.

On 22 November 2017, the Fair Work Commission considered that matter of Thomas v ACT Government – Transport Canberra and City Services t/a ACTION– Termination of employment, misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy.

In this matter the applicant Mr Thomas a bus driver was dismissed following an incident that occurred whilst performing his duties when he became involved a physical altercation with the male driver of a utility. The applicant extended his finger to the other driver in a rude gesture and broke the driver’s side mirror of the other vehicle.

In his defence the applicant stated that he did not instigate the incident. The Commission found there was a valid reason for termination in that the applicant failed to meet his obligations under the s.9 Public Sector Management Act to exercise reasonable care and treat members of the public with courtesy.

However Deputy President Kovacic held the dismissal was disproportionate to the applicant’s misconduct when consideration was given to the circumstances surrounding the incident, his length of service, and employment record.

Deputy President Kovacic found employment relationship was likely bruised but not beyond repair and that reinstatement appropriate. The Deputy President declined to order remuneration given applicant’s conduct in ‘flipping the bird’ and damaging the other vehicle. It was found that the dismissal was harsh and reinstatement with continuity of employment to be maintained was ordered.

Workplace Misconduct Investigation NSW/ACT – Lesson for employers

  • Always consider all of the circumstances when considering dismissal
  • Ensure that the punishment fits the crime
  • If in doubt call in an expert to investigate the matter thoroughly
  • Ensue that your managers and HR professional are fully trained in the areas of
    • Miscounduct
    • Misconduct investigation
    • Reasonable management action
    • Unfair dismissal

Workplace Misconduct Investigation Sydney NSW- AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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