Relying on too many allegations may have an adverse effect
In a recent decision, the Fair Work Commission considered an employer who relied on several allegations of misconduct to dismiss a worker. The company submitted that, “in totality”, the allegations constituted serious misconduct. However, the Commission held that the company’s “kitchen sink” approach to the dismissal presented a significant procedural deficiency and, ultimately, it found in the employee’s favour.
John Lupson was employed as an electrical supply team member at Australian Pacific Airports (Melbourne) Pty Ltd (“Melbourne Airport”). In January 2020, Lupson arrived to recommence work after a period of long service leave. However, his ASIC, an identification document that records an employee’s level of security clearance, had expired. He was stood down on full pay pending a disciplinary investigation.
Following the investigation, Lupson received a show-cause letter from his employer. He did not respond, stating that he was on personal leave due to his mental health. Lupson was terminated from his employment a few days later. The termination letter outlined several allegations, including that Lupson had sent inappropriate emails from his company account, accessed and attended the workplace with an expired ASIC, and behaved inappropriately during a funeral service for a Melbourne Airport employee. Melbourne Airport submitted that the allegations breached several company policies and justified his dismissal when viewed “in totality”.
The Commission was persuaded that some of the allegations towards Lupson constituted a valid reason for his dismissal. In particular, it commented that the requirement to hold a valid ASIC was a “basic and fundamental condition” of his employment and that Lupson’s attempts to justify entering the workplace without one were unreasonable. It was also satisfied that Lupson was notified of, and afforded an opportunity to respond to, the reasons for his dismissal.
However, the Commission took issue with Melbourne Airport’s investigatory process. “The employer in its own words “framed” a total of twelve allegations which evolved over the course of the disciplinary process. In my view, this was a retrospective “kitchen sink” type approach aimed at justifying the termination of employment,” the Commission said.
The Commission also gave regard to Lupson’s age, eight years of service at the company, and specialist skills. With this, it found that the dismissal was unfair and awarded Lupson $8,384.67 compensation.
