GM admits decision to fire worker finalized before meeting
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where a worker argued she was denied procedural fairness when terminated for alleged misconduct.
The worker claimed she wasn't given proper notice of the allegations against her or a genuine chance to respond before being dismissed.
The case highlighted the tension between addressing serious workplace conduct issues and ensuring proper dismissal procedures are followed.
While the employer pointed to a pattern of concerning behaviour, the worker maintained she was denied basic procedural rights in the termination process.
The worker started at the Yandina Hotel as a casual kitchen assistant in December 2016, before the current owners took over in July 2017.
Over nearly seven years, she progressed to become the bottle shop manager, working regular shifts of around 30 hours weekly spread across six days.
As bottle shop manager, she supervised several staff members including retail assistants. She gave work instructions both in person and through a staff Facebook page. The general manager oversaw her work.
In mid-2024, two staff members separately raised serious complaints about the worker's workplace behaviour. They said she used threatening conduct, intimidation tactics, and abusive language.
Multiple staff members gave evidence about the worker's conduct. A bottle shop retail assistant described being publicly criticised and feeling threatened. He said during cross-examination:
"[The worker] clenched her fists after he challenged one of her comments, which made him 'take a step back.' He said he felt intimidated by [the worker]."
Another staff member reported abusive language and inappropriate touching. She stated the worker had touched her buttocks and made unwanted comments about her appearance, which left her extremely uncomfortable.
The general manager said he had previously spoken with the worker "5 or 6" times about how she spoke to people, though these conversations weren't documented in writing.
On 20 June 2024, the general manager held a brief meeting with the worker about the complaints. The meeting ended with immediate termination. However, the Commission found serious issues with how this was handled.
The general manager later admitted he had already decided to terminate the worker before their meeting. The Commission noted this violated fair procedure requirements:
"[The general manager] accepted in cross-examination that he had conducted an 'investigation' into the allegations against [the worker] prior to meeting with her and that his mind was made up before the meeting with [the worker] that [she] would be dismissed. He said that nothing [the worker] could have said would have convinced him that there would be any other outcome."
While finding valid reasons existed for termination, including later evidence of an undisclosed $250 supplier gift voucher, the Commission emphasised the serious procedural failures:
"[The worker] would have been unaware that her ongoing employment was at risk. Had she been put on notice of the allegations against her, [the worker] would have been in a better position to respond, including by seeking some support."
The Commission particularly noted the problems with how the termination was handled:
"The process adopted by [the employer] in withholding key information about the allegations and the reasons for dismissal and the failure to properly consider any response were serious deficiencies in the termination process that was undertaken. [The worker] was not accorded procedural fairness."
The Commission ordered compensation of $4,507.86 (gross), representing eight weeks' pay with reductions for misconduct and other factors. This amount reflected both the worker's length of service and the circumstances of her dismissal.
The decision showed that even when misconduct is proven, employers must still follow proper termination procedures, including giving workers a genuine opportunity to respond to allegations before decisions are made.
