An employee was awarded $32,000 in an unfair dismissal case despite the FWC finding that the employer had "multiple valid reasons" for dismissal.

This recent case in the FWC highlights the importance of ensuring procedural fairness in a disciplinary process, regardless of how overwhelming the evidence against an employee may be.

The case involved a Wharf Officer who received a show letter containing the following four allegations:

Allegation 1 - On or about 4 May 2022, the Employee stated to the Payroll and Resources Coordinator that the Company could “go f**k themselves” because Services Australia had directed the Employer to deduct child support payments from his salary

Allegation 2 - On 26 June 2023, in an email to his Operations Supervisor, the Employee stated that “[i]f the pay rise includes surveying for an extra $5, well you can tell the Company to stick it”

Allegation 3 -  On 27 June 2023, the Employee was confrontational and displayed aggressive behaviour towards HSEQ Manager including stating that the Company could “go fuck themselves – while showing the middle finger to the air” (Allegation 3); and

Allegation 4  The Employer had been informed by a number of staff that he had acted in an aggressive manner towards them at the workplace.

In addition to the allegations that were put to the Employee in the show cause letter it was found during the unfair dismissal case that the Employee had secretly recorded conversations at work.

The FWC was satisfied that the Employer had multiple valid reasons for the Employee’s dismissal. The most significant of these was his conduct during the verbal warning meeting, the covert recordings and his abusive, rude and aggressive emails and communication with other employees.

Despite this, the FWC found that dismissal was unfair because of significant procedural fairness issues with the disciplinary process.  These are briefly summarised below:

Procedural Issue 1 – The employee was not provided sufficient time to respond to the allegations.  He was given a show cause letter and required to provide a response the next day.

Procedural Issue 2 – The show cause letter did not have sufficient detail of the allegations.  The Employee denied the allegations and requested further particulars in relation to Allegation 4 but the Employer did not provide him with further particulars and instead the Employer terminated the Employee’s employment, effective immediately.

Procedural Issue 3 – The employee was not provided with a formal meeting in which he could respond to the allegations.

Procedural Issue 4 - The Employee was never clearly informed that his behavior was unacceptable and could lead to dismissal.

Procedural Issue 5 - The Employer did not consider alternatives to termination and failed to communicate changes in behavior standards to the Employee.

There are a lot of takeways from this case but probably the most significant is don’t skip steps in your disciplinary process. An employer must adhere to procedural fairness standards no matter how overwhelming the evidence is that an employee has engaged in misconduct.

It is likely that had the Employer provided the Employee with further particulars and an opportunity to properly respond to the show cause letter, the dismissal would not have been found to be unfair and the Employer would have saved at least $32,500 in the process.

If your organisation needs assistance conducting an investigation or your staff members need training in how to conduct a procedurally fair workplace investigation, please contact alex@insightinvestigations.com.au