Key Take-Home Messages from the Employment Law Cases of 2016: Part 2

Some of the important decisions handed down in the employment law world during 2016 would have left more than one employer very glad that they were not the ones facing the Fair Work Commission!

In part 1 of our year-end review of the cases of 2016, we covered the interplay between employment law and other legal areas. In part 2, we take a look at cases where employers have reacted impulsively and failed to afford employees appropriate procedural fairness before dismissal – and borne the consequences.

Think before you act – keeping emotion out of the workplace

When suspected serious misconduct occurs in the workplace, employers often feel that they have no choice but to act swiftly and deal with the offending employee once and for all.

The unspoken motivation is often that employers and co-workers may simply stop liking an employee once the basis for suspicions is laid, rendering a continuing relationship near impossible.

Keeping procedural fairness at the centre of decisions

The decision in Platypus Shoes illustrates that suspicions of serious misconduct are not enough to warrant summary dismissal. Instead, the Fair Work Commission found that employers must demonstrate a willingness to listen to any response to allegations made against an employee before determining a course of action.

The employer's failure to ensure that the employee was afforded procedural fairness meant that he was found to have been incorrectly terminated. The employer would have been within their rights to effect a summary dismissal if the employee had been given adequate opportunity to respond to the allegations of misconduct levelled against him.

A defence straight out of a Monty Python sketch

Another case where an employer made a rash decision based on an entrenched point of view was in the matter of Somasundaram.

This involved the dismissal of a teacher for reasons which the Department of Education and Transport conceded (after the unfair dismissal proceedings had already commenced) were less than adequate.

Despite this concession, the department maintained that the employee should not be reinstated and kept this position through several levels of appeals.

Ultimately, the department was ordered to pay the teacher's significant costs of almost $90,000, all because it refused to accept that the teacher should be reinstated because of the improper dismissal.

The vexing question of blue language

There were two cases involving language inappropriate for the workplace in 2016.

So what happens when an employer feels threatened by the words of an employee?

In Hennigan, the use of the expression "I'll fix you up" by an employee was considered to be a sufficient threat to warrant summary dismissal. However, this was in response to one-sided threats from the employee against the employer.

By contrast, when strong language was used by both parties involved in an argument in Hain– and the dismissal was communicated informally through a text message – this was considered insufficient grounds for dismissal and the employee was reinstated.

The clear lesson here is that, if employers are seeking to dismiss employees, they must ensure that they keep a cool head and avoid entering into a heated argument which might taint the dismissal.

The need to consider mitigating factors in dismissal

The decision of Anders is particularly important for employers trying to establish whether an employee has shown mitigating factors which should be taken into account when considering a dismissal.

A teacher who had suffered a breakdown and consequently aired her frustrations with her employer on social media was summarily dismissed.

However, the commission considered that the employer should have taken into account various mitigating factors, including the employee's mental health diagnosis, her husband's poor health and her employer's failure to intervene when the employee's relationship with co-workers began to break down.

Her termination was considered invalid, and compensation was ordered. 

The take-away lessons from 2016

These decisions all demonstrate why employers must remember to play devil's advocate before terminating an employee, and must consider whether there is any argument which the employee might use in their favour to demonstrate that their dismissal was inappropriate.

Once a dismissal has occurred, an employer must be prepared to accept that the dismissal may have been unjust – or risk bearing the significant financial ramifications of holding an unreasonable entrenched position.

As we launch into 2017, these cases are a timely reminder of the need for fairness in workplace investigations. If you’d like assistance with an investigation or training in how to conduct a thorough one, contact us.

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