Less is more: Fair Work Commission critical of investigation process despite the employer’s valid reason for dismissal

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

In Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] FWC 6721, the Fair Work Commission (FWC) was critical of an employer’s investigation process which involved putting a number of allegations to an employee for his past and recent conduct in order to justify the employee’s summary dismissal due to serious misconduct.

The Melbourne Airport employee was engaged as an Electrical Supply Team Member and worked for the employer in excess of 8 years. In January 2020, the employer commenced a disciplinary investigation, including holding three disciplinary meetings with the employee in which allegations about his conduct and behaviour were put to him.

The employer ultimately found that six of the allegations were substantiated:

  1. That between 2012 and 2019, the employee engaged in inappropriate workplace behaviour during working hours by sending inappropriate and unprofessional content from his work email address.
  2. That in or about December 2019, while on personal leave and deemed unfit for duties, the employee entered the workplace without authorisation.
  3. That in or about December 2019, the employee stored contents from his work computer onto a personal drive without authorisation.
  4. That in or about December 2019, the employee sent an unprofessional email to his managers.
  5. That in or about January 2020, the employee breached the Code of Conduct by entering the workplace without a valid security clearance.
  6. That in or about February 2020, the employee attended a late colleague’s funeral where he behaved inappropriately and spoke aggressively towards his managers.

The employer summarily dismissed the employee on the basis that his conduct, as a whole, demonstrated a pattern of behaviour that amounted to serious misconduct.

The employee lodged an unfair dismissal claim alleging that he was dismissed because he was a union delegate and because of his workplace complaints. The employee also claimed that there were ‘significant deficiencies’ in the employer’s investigation process, including its failure to provide evidence in support of its allegations and that it had raised historical allegations about his conduct which were not of any seriousness. In particular, the employee claimed that the employer only raised certain emails years after they were sent in an effort to bolster its attempt to summarily dismiss him.

The employer disagreed with the employee’s claims and maintained that the investigation revealed a “pattern of behaviour” that constituted serious misconduct.

Having examined all six allegations, Deputy President Mansini was of the opinion that only two constituted a valid reason for the termination of the employee’s employment.

The Deputy President agreed with the employer that the employee had breached his employment contract in copying documents from his work computer and onto a personal drive, with some contents being highly confidential in nature.

In addition to this, the Deputy President found no reasonable justification as to why the employee accessed the employer’s premises without a valid security clearance by tailgating another employee at the carpark entry, and at the entrance of the building. It was a condition of the employee’s employment with the employer that he hold a valid Aviation Security Identification Card and the employee was in breach of this condition.

The Deputy President found that there was no evidence to support the employee’s claim that he was dismissed because he was a union delegate or because he made complaints to regulatory bodies.

As for the remaining allegations, the Deputy President found that they did not constitute a valid reason for dismissal. 

While the Deputy President was satisfied that the employee was afforded procedural fairness in relation to the valid reasons for dismissal, she nevertheless found that the employee’s summary dismissal was harsh, unjust or unreasonable.

Firstly, the Deputy President found that there was not a “pattern of behaviour” as alleged by the employer which amounted to serious misconduct and warranted summary dismissal.  

The Deputy President also found that the employer’s approach in the investigation process to “frame” 12 allegations to put to the employee was a “kitchen sink” approach aimed at justifying the summary termination of the employee’s employment.

For these reasons, the Deputy President concluded that the summary dismissal was disproportionate to the employee’s conduct, rendering the dismissal unfair.

The Deputy President considered that reinstatement was inappropriate given the loss of trust in the employment relationship. The Deputy President ordered the employer to pay the employee compensation totalling $8,384.67, being equivalent to his entitlement to notice.

Lesson for employers

As seen in this case, the FWC found only two substantiated allegations despite the employer’s attempt to rely on several allegations of misconduct and misbehaviour in an effort to show a pattern of behaviour to summarily dismiss the employee.

Whenever an employer summarily dismisses an employee, they must not only show that the procedure was procedurally and substantively fair – but also that the conduct warranted summary dismissal.  This provides an additional level of complexity for employers to overcome in unfair dismissal proceedings. Perhaps if the dismissal had been effected with notice (and pay in lieu thereof), the employee in this case would not have been successful in disputing the dismissal at all. 

It is also worth noting that including weaker allegations as reasons for termination of employment can have the effect of undermining the stronger ones – in this case, “less” would have been a better option for the employer rather than “more”.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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