Three recent decisions of the Fair Work Commission (FWC)
Three recent decisions of the Fair Work Commission (FWC) serve as a reminder to employers that despite there being a valid reason for the dismissal of an employee, a range of other factors can lead to a finding of unfairness.
It is often the case that an employer will be confronted with conduct by one or more of its employees which it considers inexcusable and justifies dismissal. In many cases, the FWC will agree that the conduct justified dismissal, but nevertheless find that the dismissal was unfair.
It is important to remember that when considering whether the dismissal of an employee was harsh, unjust or unreasonable, the FWC will consider not only whether there was a valid reason for the dismissal, but also:
- whether the employee was afforded procedural fairness, which includes whether the employee was notified of the reason and provided with an opportunity to respond; and
- any other reason that the Commission considers relevant, which could include the employee’s age, the employee’s length of service and proportionality – that is, ‘does the punishment fit the crime?’
CASE STUDY 1 – GILL V JETSTAR AIRWAYS PTY LTD 
Mr Gill was employed by Jetstar as a licensed aircraft maintenance engineer. During a shift, Mr Gill drove a tow tug on a public road to a service station to get some food. The vehicle was not registered for use, or permitted to be used, on a public road. Following an investigation, Mr Gill’s employment was terminated for serious misconduct and breach of policy.
The FWC accepted that Mr Gill’s use of the vehicle was a valid reason for the termination of his employment. However, the tribunal held that Mr Gill’s dismissal was unfair (and ordered his reinstatement). In coming to this conclusion, the FWC took into account:
- the fact that Mr Gill had not deliberately or intentionally sought to break or disregard the Company’s safety rules;
- Mr Gill’s work history over 30 years in the industry and unblemished employment record with Jetstar;
- the financial consequences of dismissal for Mr Gill and his family;
- Mr Gill’s age (60 years old) and future employment prospects;
- the fact that other Jetstar employees involved in safety related breaches, whose actions were arguably far more serious, were treated differently to Mr Gill.
CASE STUDY 2 – KIRKBRIGHT V K&S FREIGHTERS PTY LTD 
Mr Kirkbright was employed as an operations supervisor. He was dismissed for failing to follow company policy. The misconduct included sending freight free of charge and without proper documentation, and use of a company fuel card whilst on annual leave.
Again, the FWC was satisfied that there was a valid reason for Mr Kirkbright’s dismissal.
However, the Commission found that Mr Kirkbright was not notified of the reason for his dismissal before he was dismissed, nor given an opportunity to respond. The FWC also took into account Mr Kirkbright’s 30 years of unblemished service with the employer.
The FWC was particularly critical of the investigation process undertaken by the employer; and the failure of the human resources team to brief the relevant manager on how to handle the meeting with the employee, during which the employee became agitated and angry, and concluded with the manager dismissing the employee.
Instead, in the tribunal’s view, Mr Kirkbright should have been provided with the allegations against him in writing, and given a chance to respond either in writing or at another meeting in a couple of days’ time.
CASE STUDY 3 –STARR V DEPARTMENT OF HUMAN SERVICES 
Mr Starr had 21 years of service with Centrelink. Mr Starr was dismissed as a result of a number of comments he made on social media over a period of almost three years, including one post in which he referred to clients of Centrelink as ‘spastics and junkies’ and another in which he said he was ‘embarrassed to work’ at Centrelink.
The FWC held that some, but not all, of the posts made by Mr Starr constituted a valid reason for the dismissal . However, it was nevertheless determined that the dismissal was harsh after having regard to the following:
- the length and quality of Mr Starr’s service;
- there was no evidence to suggest that Mr Starr’s comments online affected his ability to perform his position;
- there was also no evidence that Mr Starr’s posts actually damaged Centrelink’s reputation, nor was it found that Mr Starr intended to damage Centrelink’s reputation;
- Mr Starr’s remorse, which indicated that it was unlikely that the conduct would be repeated;
- the personal consequences of the dismissal for Mr Starr.
Importantly, the FWC also noted that Centrelink sought to dismiss Mr Starr based on a range of reasons which were unjustified. Further, if the reasons for disciplinary action were properly confined to the matters which were considered to justify dismissal, it is likely that a lesser disciplinary sanction would have been imposed on Mr Starr by Centrelink. He obtained an order for reinstatement.
WHAT SHOULD EMPLOYERS DO NEXT?
When faced with conduct that an employer considers would justify dismissal, rather than rushing into a dismissal, it is important to first ask the following questions:
- Have you notified the employee of the reason/issues prior to the dismissal and given them an opportunity to respond? If not, you should schedule a meeting with the employee, outline the issues, advise the employee that their conduct could result in dismissal, and provide the employee with an opportunity to respond. You should also consider whether the issues discussed should be confirmed in writing.
- Can you substantiate the conduct that is said to justify the dismissal? An employer should consider whether an adequate investigation has been conducted, and whether further enquiries are required following any response from the employee. Employers should also avoid the temptation to ‘throw in the kitchen sink’ to a letter of allegations – a long list of infractions which include many that have not or cannot be substantiated, could weigh against the employer in an unfair dismissal case.
- Have you considered the response from the employee (if any)? The employee’s level of contrition, whether the employee acted deliberately or intentionally and whether it is likely that similar conduct would occur again are all matters that should be taken into account. As noted above, you should also assess whether there is anything in the employee’s response which warrants further investigation.
- Does the conduct affect the ability of the employee to perform their role or otherwise adversely affect the business of the employer? Whilst certain conduct may be undesirable, an employer should still consider how the conduct impacts on the ability of the employee to adequately perform their duties and/or how such conduct could adversely affect the employer’s business or operations.
- Are you acting consistently? Before a decision is taken to dismiss an employee, enquire into what disciplinary action has been taken in response to similar conduct by other employees within the organisation. If other employees have not been dismissed for the same conduct, consider what it is that distinguishes this case to justify dismissal.
- Have the managers/supervisors who will meet with the employee in relation to the issues and potential dismissal been properly briefed? Do they know what to do if things get heated or emotional during the discussions? Ensure that those who will be in the relevant meetings with the employee are fully aware of all relevant issues, the process to be followed and the potential outcomes. Ensure that the managers/supervisors are aware that the employee may react emotionally or irrationally during the meeting, and provide the managers/supervisors with the skills and tools to deal with such reactions professionally.
- Is dismissal a proportionate response having regard to the conduct and the circumstances of the particular employee? Consider the length of the employee’s prior service, their employment record and the impact that the dismissal will have on the individual.
Often, many of these matters will be finely balanced. However, the discipline of carefully considering these questions prior to making a decision to dismiss an employee, no matter how unpalatable the conduct, will place an employer in a better position to defend a subsequent unfair dismissal claim.
  FWC 1472 (11 March 2016).   FWC 1555 (24 March 2016).   FWC 1460 (29 March 2016).   FWC 1460 at -.
About Simon Billing:
Simon has provided Australia’s leading companies with strategic commercial advice on occupational health and safety, workplace relations and employment law for more than 20 years. He is currently a Partner at Corrs Chambers Westgarth, in Perth.
He has a particular focus on issues affecting the mining, energy and engineering industries, having been a senior adviser for the Australian Mines and Metals Association and representative of mining companies in Western Australia, New South Wales and Victoria.