This article was produced by HR Legal, who provide legal reviews for eComplianceTraining – including our Avoiding Inappropriate Behaviour in the Workplace program.
Employers must follow a procedurally fair process when conducting a termination in order to be in a good position to defend an unfair dismissal application. Aside from a valid reason, the Fair Work Commission (FWC) must determine if the dismissal was ‘harsh, unjust or unreasonable’ in the circumstances. Some factors the FWC may consider in determining this include whether the employee was notified of the reason for dismissal, and if the employee was given an opportunity to respond.
However, the FWC may take into account any factor that it considers relevant.
In the following two cases, the FWC found that both employees were terminated for a valid reason, but with starkly different outcomes.
Jason Stafford v Vision Trucks Pty Ltd T/A Summit Water Services  FWC 3276
Mr Stafford commenced with Summit as a water truck driver in February 2013. By the time he was dismissed in December 2014, he had received numerous warnings with regards to his performance and conduct.
Each Summit driver had been notified that they must undertake a pre-operational inspection and defect checklist each day to ensure the truck’s roadworthiness. This was part of Summit’s obligations under the National Heavy Vehicle Accreditation Scheme. Mr Stafford had received training in July 2013 regarding these policies and practices and had successfully met competency requirements.
In October 2014, Mr Stafford failed to undertake the required pre-operational check and was issued with a warning. In November 2014, Mr Stafford handed in incomplete paperwork, for which he received another warning.
On 4 December 2014, Mr Stafford again failed to conduct the required inspection and checklist. Consequently, on 5 December 2014, Mr Stafford was told in a meeting that his employment was terminated because Summit ‘can’t afford for trucks to be wrecked or broken’.
The FWC held that Summit had a valid reason for Mr Stafford’s dismissal due to his ‘persistent failure to conform to company procedure in relation to a range of matters’. Furthermore, ‘the inspection and reporting demands in the industry are important and Mr Stafford was well aware of them’.
The dismissal undertaken by Summit was held to be ‘a departure from the standards of procedural fairness anticipated by the legislation. That is, Mr Stafford was dismissed abruptly and without full explanation or an opportunity to provide a defence’.
However, in light of the previous breaches regarding pre-operational checks ‘and in the context of the industry in which he works and in the context of its regulatory requirements…there were reasonable grounds for [Summit] to have lost confidence in Mr Stafford to apply the necessary road safety’.
The dismissal was therefore not considered harsh, unjust or unreasonable.
Antony Mundy v MSS Security Pty Ltd T/A MSS Security  FWC 3226
Mr Mundy had worked as a security officer with MSS since November 2011 and had a good employment history. Mr Mundy had completed various training programs throughout his employment, the latest being on 8 December 2014. During training, and in its policies, MSS identified that that one of the most serious offences was sleeping on the job, which could result in employment being terminated summarily.
On December 17-18 2014, Mr Mundy was working at the Alinta site on the night shift where he was caught sleeping by an Alinta employee. Mr Mundy’s supervisor was on leave from 22 December 2014 to 7 January 2015 and only became aware of the incident on 9 January 2015. However, due to the Alinta employee being away and various other MSS work commitments, a letter of allegations was only issued to Mr Mundy on 27 January 2015, some 6 weeks after the event. Up until that date, Mr Mundy had continued to work as per normal.
Mr Mundy responded to the letter on 28 January 2015. He apologised and stated that his mother had been ill that day which is why he was tired, but he had thought he would be able to do the shift regardless. On 29 January 2015, a meeting was held where Mr Mundy was summarily terminated.
The FWC held that Mr Mundy should have been able to assess whether he would be fit for work in light of the training he had undertaken 10 days prior. This, together with the strict company policies, meant that there was a valid reason for his dismissal.
The FWC considered that the delay in conducting an investigation and terminating Mr Mundy lessened the significance of the policy breach and made the dismissal ‘harsh’.
The FWC held that –
‘There is a fundamental inconsistency between permitting a long delay of this nature to occur such that Mr Mundy continued to work as a security officer at the Alinta Energy site even after MSS was aware of the allegations made against him. Simply put, if his behaviour in falling asleep whilst on duty was so significant then it was a matter that should have been actioned much earlier’.
The FWC ordered that Mr Mundy be reinstated.
Lessons for employers
In the cases above, both employers had properly implemented policies which they could rely upon for a valid reason for the dismissal.
While there is no specific science in determining whether all defects in the dismissal process will render a dismissal as ‘unfair’, it is clear that investigations into alleged misconduct must be dealt with promptly – Summit dealt with the issue the following day, whereas MSS waited some 6 weeks, which made the dismissal harsh.
Further, as seen in Summit, it appears that industries that carry heavier safety obligations may be granted more leniency by the FWC and a safety breach may outweigh procedural flaws.
Of course, however, adopting a procedurally fair process at the outset will assist employers in minimising risk and avoiding the time and expense of responding to unfair dismissal applications.
eCompliance Training offers an online Avoiding Inappropriate Behaviour in the Workplace program.
If you require assistance in relation to managing a termination, or regarding dismissal risks, please contact HR Legal.