Prior to termination, employers are urged to consider the reason they are letting their employee go and ensure they have a valid reason for dismissal. It may be because they lack capacity, are underperforming, engaging in unacceptable conduct or for reasons for redundancy. It is well established that the reason must be sound and well founded, and employers must ensure that the dismissal process is handled properly and in accordance with the principles of procedural fairness.

In a recent case^[1] before the FWC, a beach inspector was summarily dismissed for serious misconduct after he decided to lend a helping hand to fix the air-conditioning units in two council vehicles. The employee’s modifications voided the vehicles’ warranties and resulted in a $4000 repair bill.

The employee contended that he was authorised to carry out the modifications by his supervisor (he was previously a trade-qualified auto-electrician/air-conditioning fitter). The council was happy to take advantage of the employee’s “willingness and self-initiative” and he was often encouraged or expected to perform similar tasks. The employee claimed that he offered to fix the units as the heating problem may escalate to an OHS issue, and his supervisor accepted his offer.

The supervisor denied that he approved, or had the authority to instruct, the employee to perform the modifications. The council claimed that his unauthorised modifications caused damage to the vehicles and that the vehicles could have malfunctioned, potentially impacting the council’s ability to perform lifesaving services. The council categorised this incident as gross misconduct and dismissed the employee for breaching the Code of Conduct.

The FWC found that the investigation process conducted into the incident was heavily flawed and lacked procedural fairness. It was found that the employer “failed to comply with its own written policies, instead conducting an investigation of a standard more typically associated with a small business bereft of such expertise”. Despite the evidence of the supervisor being integral to the issues in dispute, he was given full carriage to conduct the investigation and was present when the employee gave his evidence. Further, the supervisor took no witness statements, nor did he prepare an investigation report.

The FWC decided that the there was no valid reason for the employee’s dismissal. The modifications were not inconsistent with the range of tasks that he and others were often expected and encouraged to perform. In any event, the dismissal process heavily lacked procedural fairness, rendering the termination unjust and unreasonable. An order for reinstatement was made.  

Lessons for employers

• Ensure that the reasons for the dismissal are clearly communicated to employees and that they are provided with an opportunity to respond.
• The reasons for the dismissal must be consistent both in the meeting and in any follow up termination letter.
• Where issues of conduct are concerned, refer to a company policy or code of conduct to determine whether the behaviour is punishable or worthy of a disciplinary process.
• Investigations into instances of misconduct must be conducted lawfully, fairly and in accordance with any relevant company policies and procedures. Consider whether appointing an external investigator is necessary. 
• Content of company policies should be regularly reviewed, updated and communicated to employees so they are fully aware of your expectations