In two separate recent decisions of the Fair Work Commission, a lack of procedural fairness in the process leading up to dismissal has been found to render the dismissal unfair, despite there being valid reasons for the dismissal in both cases.

In the first decision[1], a golf club had terminated the employment of its head greenkeeper following his failure to prioritise work in accordance with the general manager’s direction and failing to take proper care of one of the greens (leading to shortening of a major tournament). While Deputy President Abbey Beaumont agreed that these were valid reasons for dismissal, she found that the procedural flaws were “unacceptable” leading to a dismissal that was ultimately unfair.

The procedural flaws included:

• The employee was informed that the board had lost trust and confidence in him and that he should consider resigning
• The employee enquired about taking his case to the board but was told there was little point
• The employee was dismissed with immediate effect

While the club did not have a dedicated HR person, it relied upon advice by the club president, an IR barrister, and this was a factor in the finding that the dismissal was unfair as the employer should have known to notify the employee and provide him with an opportunity to respond to the performance concerns.

Although the dismissal was found the be unfair, Deputy President Beaumont determined that reinstatement was not appropriate and, due to the employee’s earnings as a FIFO worker post-dismissal, no compensation was awarded.

The second case[2] involved a retail employee who was dismissed for misconduct, including failure to comply with a policy in relation to informing the employer about unavailability for a shift. In an interesting twist, the employee relied upon secret recordings of the disciplinary meetings to refute the employer’s version of events. While the recordings assisted Commissioner Lee to determine that the employee’s behaviour during the meetings did not justify dismissal, he also found that the recording of the meetings without consent of those attending retrospectively provided a valid reason for the dismissal.

Despite there being a valid reason for the dismissal, Commissioner Lee found that the dismissal process was “riddled with flaws”.

The procedural flaws in this case included:

• Refusal to allow the employee more time to find a support person (after being given 24 hours’ notice of the meeting)
• The HR manager gave the employee incorrect information about her rights and the employer’s obligations under the Fair Work Act (for example, telling her that only 24 hours notice was required under the Act)
• The employee was told she would be suspended without pay if she did not attend the meeting, however when she did not attend her employment was terminated with immediate effect

Commissioner Lee found that, “at best, the process followed by [the Human Resources Manager] in effecting the dismissal was bungled and incompetent.”

While reinstatement was found not be appropriate, Commissioner Lee has requested further information in order to determine whether compensation will be awarded.

Lessons for Employers

Employers need to be mindful of the two elements that need to be satisfied for a dismissal to be fair:

1. There is a valid reason for the dismissal, and
2. The employee is afforded procedural fairness.

Too often employers concentrate on the reason for dismissal, and neglect to ensure a fair and reasonable process is followed in addressing performance or conduct concerns.

Remember:

• Ensure the employee is given reasonable notice of the requirement to attend disciplinary meetings
• Provide the employee with the opportunity to bring a support person
• Explain to the employee the nature of the performance issues or concerns
• Give the employee an opportunity to respond
• Unless the conduct amounts to misconduct justifying summary dismissal, give the employee an opportunity to improve and/or address the concerns.