Procedural fairness dismissal principles remain central to unfair dismissal claims, particularly where an employer moves directly to termination of employment without issuing prior warnings. A recent Fair Work Commission (“FWC”) decision demonstrates the risks employers face when dismissal decisions are made hastily, without proper process and without regard to proportionality.
Factual background
The employee was employed as a supervisor in a civil contracting and commercial landscaping business and had been in the role for approximately 15 months at the time of his dismissal. He had not received any formal warnings during his employment.
The termination followed a single meeting called by the employer’s HR Manager. The employee was not told in advance what the meeting was about and was not notified that his employment was at risk. At the meeting, he was informed that he was being summarily dismissed for alleged serious misconduct, including allowing other employees to use a side door that the employer said formed part of an emergency evacuation plan.
Evidence before the FWC showed that the door had been physically chained shut, marked with a “no entry or exit” sign and no explanation had been provided to employees as to why it had been closed or that it was part of an evacuation route. The employee gave evidence that he had asked senior management for clarification, so he could relay it to staff, and ultimately complied once directed by his senior manager not to use the door.
No opportunity to respond
The FWC accepted the employee’s evidence that the decision to dismiss had been made before the meeting occurred. The meeting was not a disciplinary process but effectively a notification of termination.
The employee was not:
provided with particulars of the allegations in advance;
warned that dismissal was a potential outcome;
given a genuine opportunity to respond before the decision was taken; or
provided with the opportunity to arrange a support person.
The FWC found that the employee was first put on notice of the employer’s concerns at the same meeting he was dismissed, and that the dismissal decision had already been made. This denial of procedural fairness weighed heavily in favour of a finding of unfair dismissal.
Proportionality and lack of warnings
Critically, the FWC found that even if the employer’s version of events was accepted, the conduct relied upon did not justify summary dismissal as the employee allowing staff to use the side door was “less of an issue” than the employer shackling the door without explanation.
The FWC observed that the employee had not previously been disciplined, there were no warnings on file and the alleged misconduct was isolated. In those circumstances, dismissal, particularly summary dismissal, was found to be disproportionate.
Even where safety issues are involved, the FWC emphasised that employers must assess whether dismissal is a proportionate response, especially where no prior warnings have been given.
The employee was awarded compensation of $39,498.90 plus superannuation.
Why this matters for employers
This decision reinforces several well‑established but often overlooked principles. Employers should ensure that employees are notified of concerns before decisions are made, given a genuine opportunity to respond and warned where performance or conduct issues arise unless the conduct clearly amounts to serious misconduct. Procedural fairness is not a “tick‑box” exercise; it requires real engagement and an open mind.
Equally, employers must assess proportionality. Moving straight to dismissal, particularly where the employee has an otherwise clean record, creates significant legal risk. A failure to warn, coupled with an absence of clear serious misconduct, will often lead to a finding that a dismissal was harsh, unjust or unreasonable.
