Fair Work probes allegations against worker
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker employed as a lead auditor and their employer, a member of the Linde Group, which supplies compressed and bulk gases, chemicals, and equipment in Australia and around the world.
The decision, handed down by the FWC, sheds light on the intricacies of unfair dismissal claims and the factors considered by the Commission in determining whether a dismissal was harsh, unjust, or unreasonable.
In this case, the worker was summarily dismissed for serious misconduct on 19 January 2024, just over a year after commencing employment with the company on 16 January 2023.
The worker's role required them to conduct or oversee internal audits for the employer and its related entity, Elgas Ltd.
The worker filed an unfair dismissal application with the FWC, arguing that the dismissal was unwarranted and seeking a remedy. The employer, in turn, maintained that the dismissal was justified based on the worker's alleged misconduct.
Background and allegations
According to records, the employment relationship took a turn when the worker was summarily dismissed on 19 January 2024. Before the dismissal, the worker was notified of the allegations against them in a letter dated 11 January 2024 from the Head of Safety, Health Environment and Quality (SHEQ) – Region South Pacific.
The letter outlined seven allegations, including falsely claiming jury service leave, misusing carer's leave, failing to comply with the manager's expectations regarding audits, behaving inappropriately towards colleagues, non-compliance with the company's travel policy, and failing to comply with directions during a disciplinary process.
The letter also stated that the allegations had been discussed with the worker on 11 January 2024 and invited them to attend a further meeting on 17 January 2024 or to respond in writing. The worker was informed of their right to have a support person present at the meeting.
The unfair dismissal application
Following their dismissal, the worker filed an unfair dismissal application with the FWC on 1 February 2024. The employer responded to the application on 8 March 2024, and no jurisdictional objections were raised. The matter proceeded to a determinative conference after conciliation failed to resolve the dispute.
During the determinative conference, the worker represented themselves, while the employer was represented by counsel.
The worker relied on various evidence and submissions, including their unfair dismissal application, the allegations letter, termination letter, and a statement and submission filed on 4 April 2024. The worker also produced documents in response to a production order issued by the FWC on 8 May 2024.
The employer's response
The employer opposed the worker's unfair dismissal application and relied on witness statements from their HR manager and the head of SHEQ.
These statements were accompanied by various documents, including email correspondence, meeting notes, and performance-related issues.
The employer's counsel made oral closing submissions at the end of the determinative conference, arguing that the dismissal was justified based on the worker's conduct.
Factors considered by the FWC
In determining whether the dismissal was harsh, unjust, or unreasonable, the FWC considered several factors outlined in section 387 of the Fair Work Act 2009 (Cth).
These factors include whether there was a valid reason for the dismissal related to the worker's capacity or conduct, whether the worker was notified of that reason and given an opportunity to respond, any unreasonable refusal by the employer to allow the worker to have a support person present, and whether the worker had been warned about unsatisfactory performance before the dismissal, among others.
After considering all the evidence and submissions, the FWC reached a conclusion on whether the worker's dismissal was harsh, unjust, or unreasonable. The decision highlights the importance of employers conducting thorough investigations and following due process when dealing with allegations of misconduct.
The FWC found that there were three separate valid reasons for the worker's dismissal and that the employer followed a proper process in effecting the dismissal. The FWC stated:
"I have found that there were three separate valid reasons for [the worker's] dismissal and that [the employer] followed a proper process in effecting the dismissal. I find that the dismissal was not unjust or unreasonable."
Worker’s dismissal was not harsh
The FWC also acknowledged that while the worker presented as a likeable person with strong religious beliefs, they may not have been fully aware of the seriousness of some of their conduct.
However, the FWC ultimately determined that the misconduct committed by the worker was serious and that the dismissal was not harsh in all the circumstances:
"[The worker] presented as a likeable person with strong religious beliefs. I do not consider he was fully aware of the seriousness of some of the conduct he committed. I suspect this may explain why [the manager] did not pursue stronger disciplinary action following [the worker's] inappropriate and offensive statement at the meeting on 21 August 2023. In any event, I find the misconduct committed by [the worker] was serious and I do not consider his dismissal was harsh in all the circumstances."
In reaching its decision, the FWC emphasised the importance of considering each of the matters specified in section 387 of the Fair Work Act 2009 (Cth):
"I have made findings in relation to each matter specified in s.387. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable."
Ultimately, the FWC concluded:
"Having considered each of the matters specified in s.387 of the FW Act, I am not satisfied that the dismissal of [the worker] was harsh, unjust or unreasonable."
This case serves as a reminder for employers to carefully consider their actions when terminating an employee's employment and to ensure that they have valid reasons and follow proper processes.
The FWC's decision-making process takes into account various factors to determine whether a dismissal was harsh, unjust, or unreasonable, and employers must be prepared to justify their decisions with solid evidence and adherence to procedural fairness.
