Employers can be own worst enemy with dismissals

Lawyers remind that sacking the wrong way is very likely to be counterproductive

Employers can be own worst enemy with dismissals
The FWC backs fairness.


Employment lawyers have seized on two recent transport-related unfair dismissal cases to highlight a well-known truth.

Corrs Chambers Westgarth lawyers Simon Billing and Rosemary Roach underline that the Fair Work Commission (FWC) attaches overriding importance on fairness in the process.

"It is often the case that an employer will be confronted with conduct by one or more of its employees which it considers inexcusable and justifies dismissal.

"In many cases, the FWC will agree that the conduct justified dismissal, but nevertheless find that the dismissal was unfair.

"It is important to remember that when considering whether the dismissal of an employee was harsh, unjust or unreasonable, the FWC will consider not only whether there was a valid reason for the dismissal, but also:

whether the employee was afforded procedural fairness, which includes whether the employee was notified of the reason and provided with an opportunity to respond; and

any other reason that the Commission considers relevant, which could include the employee's age, the employee's length of service and proportionality – that is, 'does the punishment fit the crime?' "

Two of the three March decisions examined in an aptly titled advisory – Snatching defeat from the jaws of victory – are transport-related: Kirkbright V K&S Freighters Pty Ltd and Gill V Jetstar Airways Pty Ltd.

In the first, the operations supervisor was dismissed for misconduct included sending freight free of charge and without proper documentation, and use of a company fuel card whilst on annual leave.

He was not notified of the reason for his dismissal before he was dismissed, nor given an opportunity to respond.

The FWC also took into account his 30 years of unblemished service with K&S.

"The FWC was particularly critical of the investigation process undertaken by the employer; and the failure of the human resources team to brief the relevant manager on how to handle the meeting with the employee, during which the employee became agitated and angry, and concluded with the manager dismissing the employee," the lawyers say.

He "should have been provided with the allegations against him in writing, and given a chance to respond either in writing or at another meeting in a couple of days' time".

Similarly, in the Jetstar case, a licensed aircraft maintenance engineer drove a tow tug on a public road to a service station to get some food.

The vehicle was not registered for use, or permitted to be used, on a public road and he was for serious misconduct and breach of policy.

Though the sacking reason was valid, his reinstatement was ordered on fairness grounds as his action was not a deliberate flaunting of the safety rules, he had 30 years in the industry and unblemished employment record with Jetstar, the 60-year-old’s financial consequences and future employment prospects were grim, and the fact that other Jetstar employees involved in safety related breaches, whose actions were arguably far more serious, were treated differently.

The lawyers advise employers considering dismissal to follow a seven-point course detailed here.




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