Dismissals - correct procedure is key
Process and procedural fairness deficiencies trump valid reason for dismissal
The Fair Work Commission (FWC) has recently provided a new decision that shows the importance of correct procedure even where there are valid reasons for dismissal. This matter involved the Applicant engaging in serious bullying, harassment, and sexual harassment of other employees. The FWC ultimately decided that the procedures that the employer adopted were deficient, ad hoc, lacked transparency, and lacking in procedural fairness.
The working relationship between the Applicant and the complainants had deteriorated and the conflict between them had escalated leading to the complainants to formalise their complaints to management. The Applicant had allegedly made sexual comments and had sworn at the complainants on several occasions, some of which were outside of work hours.
The Applicant was called to a meeting where he was provided with a letter outlining the concerns and was directed to attend a further meeting. The Applicant then filed a bullying application with the FWC and made a complaint to management about the other complainants. The Applicant took the position that his comments were sarcastic and jovial rather than harassing in nature did not meet the threshold to be considered sexual harassment and did not breach the employer’s sexual harassment policy.
The Applicant attended another meeting in which his employment was terminated.
The FWC found that the reason for dismissal was valid, however, there were some serious deficiencies in the process that the employer followed. The employer failed to manage the escalating conflict between the employees, and it was not properly investigated. The employer conceded that it had decided to terminate the Applicant’s employment without having fully investigated the complaints, and without having issued the Applicant with a warning indicating that his employment was at risk.
The key deficiencies with the process were that the Applicant was not provided with particulars of the allegations, was not notified of the reason for the dismissal, was not given an opportunity to respond, and was not notified that the employer was considering termination.
Based on these deficiencies in the process, the dismissal was deemed unfair despite there being a valid reason for termination.
It is common for employers to have a preconceived outcome when the conduct under question is serious, however, this case demonstrates that the seriousness of the conduct does not negate the obligation to properly investigate and provide procedural fairness.