Fair Work Australia has upheld the summary dismissal of an employee after it found he invented a workplace fall and inappropriately exposed himself at work.
The Applicant was employed as an electrician until his employment was terminated on 24 May 2011. The Respondent dismissed the Applicant for reasons relating to a dishonest back injury claim, his conduct in the workplace (in exposing himself to a female colleague), and work performance issues relating to incomplete testing and tagging of electrical equipment.
After consideration of the evidence presented Commissioner Spencer found on the balance of probabilities that the Applicant “sought entry to the workplace on the public holiday when the business was closed for the purpose of making an entry after the fact in the First Aid book and completing an incident report on the alleged falling incident”.
Having regard to s.387 of the Fair Work Act 2009 (Cth) (FW Act) which sets out the criteria for considering whether a dismissal was “harsh, unjust or unreasonable” in accordance with s.385 of the FW Act, the conclusion reached by Commissioner Spencer was that the Applicant’s dishonest behaviour provided a valid reason for the dismissal.
On that basis he found it was not necessary to determine whether the Applicant had actually exposed himself to his colleague (however he found it unlikely she would have fabricated such an embarrassing scenario).
Notwithstanding the above findings, Commissioner Spencer found the dismissal had been deficient in some respects – namely, that the Applicant had been denied the opportunity to respond to the allegations, as well as the opportunity to have a support person present at a disciplinary meeting.
As the conduct of the Applicant was found to be commensurate with definition of “serious misconduct” in the Act, the deficiencies in the dismissal procedure were deemed insufficient to conclude that the dismissal was “harsh, unjust or unreasonable” in accordance with s.385 of the FW Act.
The above case demonstrates the factors that are considered in deciding whether a dismissal is “harsh, unjust or unreasonable”. In this instance, the categorisation of the Applicant’s behaviour as “serious misconduct” by Commissioner Spencer outweighed the findings of procedural deficiency in the dismissal process.
It is certainly arguable that had Commissioner Spencer rejected the Respondent’s evidence, or had the conduct of the Applicant been less serious, the omissions of the Respondent may have led to the finding that the dismissal was unfair.
It is therefore very important that regard is had to s.387 of the FW Act in the performance management of employees, and in particular to the procedural fairness obligations contained therein. This includes the provision of:
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- adequate warning about the unsatisfactory performance before the commencement of performance management;
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- the reasons for the disciplinary action;
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- an opportunity to respond to allegations; and
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- a support person in any disciplinary meetings.
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