It is well established that the two key components required during the dismissal process are identifying whether there is a valid reason and showing that employees were afforded procedural fairness. The FWC places substantial emphasis on whether employees are notified of and provided with an opportunity to respond to the reasons for their termination. An employer might have an array of legitimate reasons to let their employee go but if the process lacks procedural fairness, it will likely be all for nothing.

In a recent case before the FWC,[1] an employee was arrested on criminal charges for reasons which were unrelated to his employment, and his employer placed him on leave without pay. Whilst he was incarcerated, he was visited by his direct manager who informed him that he was able to return to work when he made bail. After the worker was granted bail, he visited the workplace and advised his employer that he was ready, willing and able to work and was honest when discussing the nature of his arrest.  

The employee was subsequently sent a letter which stated that his employment was suspended on leave without pay pending the outcome of the charges against him. Further, the letter stated that if the employee was found guilty, his employment would be terminated for breach of the company’s Code of Conduct. The letter provided no instructions that the employee was required to stay in regular contact with the employer.

Three months later, the employee was sent a further letter which stated that the company could not continue to cover his long-term vacancy from work and that his employment was to be terminated, effective 2 weeks from the date of the letter. The letter provided the opportunity for the employee to give reasons as to why his employment should not be terminated and required his response to be provided before the termination date.

The letter was sent via regular post, with no tracking on the item and an estimated time of delivery between 2-6 business days. The same day, the letter was also sent to the employee by way of email. The employee asserted that he rarely checked his letterbox or his emails as he received a fair amount of “junk mail”. As a result, neither the letter nor the email was seen or read by the employee for a further 2 weeks from the postage date.

The FWC found numerous deficiencies in the company’s handling of the dismissal process. Importantly, the employee was not afforded an adequate opportunity to respond to his dismissal. The termination letter was posted with an estimated delivery time of 6 days and yet the employee was required to respond before the termination date, which would have been the same day the letter was received by the employee. The FWC questioned why the letter was not sent via express or priority postage and noted the company’s failure to try to contact the employee after the termination date when they had not heard from him.  No adequate answer was provided by the company.

The FWC also decided that there was no valid reason to dismiss the employee for “extended absence”. He was expressly required to be absent from work following a direction from his employer. He remained ready, willing and able to work whilst waiting for permission to return. The FWC concluded that the employee was unfairly dismissed and found that an order for reinstatement was appropriate in the circumstances.

Lessons for employers

• Employers must become familiarised with the concept of procedural fairness and what is required. In saying that, the steps taken will depend upon the circumstances of the situation.
• Employees must be provided with an opportunity and sufficient time to respond to the reasons as to why they are being dismissed. At this point, mitigating factors may be disclosed which might prompt the employer to re-think the decision.
• Allow employees the opportunity to have a support person present during pre-dismissal meetings.
• Employers are to be cautions that disciplinary procedures are applied fairly and consistently to all employees.
• Follow a dismissal process closely. The FWC will consider whether the dismissal was harsh, unjust or unreasonable in light of how the process was handled.