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Lack of Procedural Fairness Undermines Dismissal
A recent decision of the Fair Work Commission (which can be accessed here) highlights the importance of applying principles of procedural fairness in workplace investigations into alleged misconduct to ensure that any subsequent disciplinary action is not undermined by a lack of procedural fairness.
This case involved allegations of sexual harassment against an employee, a manager of a bottle shop, which ultimately resulted in his dismissal. The employee had worked at the bottles shop operated by his employer for over five years and during that time the employer had received a number of complaints from customers about the employee’s behaviour.
The employer decided to take formal action following a complaint it received from a customer which alleged that she had been spoken to rudely and inappropriately on a number of occasions when she visited the store, and included an allegation that the employee had asked her if she ‘would like a root hehehe receipt’ and laughed and leered at her in an attempt to make her feel uncomfortable.
The employer stood the employee down on full pay and asked the employee to provide his response to the allegation within two days. After receiving what it said was an ‘uninformative response’ from the employee, the employer sent the employee more detail regarding the allegation, including the date and time of the alleged incident and gave him a further 48 hours to provide his response. However, the employer did not provide the employee with the complainant’s name claiming that it was withheld for safety and security reasons.
The employer concluded its investigation, which it claimed included interviewing the complainant, consideration of a number of related previous customer complaints, and discussions with the employee’s colleagues. Less than five days after receiving the complaint, the employer notified the employee that it was satisfied he had breached his duty of care obligations and that his employment was terminated for serious misconduct, effective immediately.
The employee denied the allegation and challenged his dismissal in the Fair Work Commission. He argued that he had not been made aware of the specific allegations against him, including that he had not been told who the complainant was and that he had not been given access to the CCTV footage of the alleged interaction (which was available), and that he had not been given sufficient time to respond to the allegations. He argued that the investigation had been managed hastily, was one-sided, and that the employer had simply accepted the complainant’s word and dismissed him.
The Commission considered whether the dismissal had been carried out in a manner that was consistent with the Fair Work Act 2009, which sets out the criteria for considering whether a dismissal is harsh, unjust or unreasonable.
The Commission accepted that the employee had acted inappropriately towards the customer by making unwelcome comments of a sexual nature which resulted in her feeling offended and unsafe. However, the Commission found that the employee ‘was not provided with any form of procedural fairness’ by the employer. The Commission said that that the employee:
- was not afforded the full details of the complaint;
- had been denied information that should have been made available to him; and,
- in its haste to dismiss him, the employer had failed to provide the employee with an opportunity to respond to the reasons which the employer had relied on for the dismissal.
Decision and remedy
Ultimately, the Commission had little difficulty in finding that the decision to dismiss the employee was unfair for lack of procedural fairness. In reaching its decision, the Commission found it significant that the employer had access to professional advice from an external advisor prior to making the decision to dismiss the employee and that there was no reasonable excuse for the failure to provide the employee with procedural fairness.
In terms of remedy, the Commission did not consider reinstatement as that had not been sought by the employee and noted that such a remedy was inappropriate in the circumstances given the breakdown in the employment relationship. In determining the compensation to be paid to the employee, the Commission considered $3,000 plus superannuation to be appropriate as it reflected that the employee would likely have remained in employment for a further two weeks had he not been dismissed.
Employers must take care when presented with allegations of misconduct, even when they are serious in nature and appear to have substance, as a failure to properly investigate and provide the employee with a meaningful opportunity to have their say before a decision is made, could undermine any decision to take disciplinary action.