Worker criticises employer's reliance on hearsay, insufficient investigation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that shed light on the complexities of employment termination and the importance of clear communication and proper processes.
The case involved a warehouse assistant and truck driver who claimed to have been unfairly dismissed from his employment, while the employer argued that the worker had effectively resigned due to his conduct and language towards a senior colleague.
The worker had been employed by the company since 26 July 2021, working as a warehouse assistant and truck driver. His duties included preparing deliveries, sorting rubbish, cleaning the warehouse, receiving supplier deliveries, and operating a forklift and truck.
The worker was covered by the Storage Services and Wholesale Award 2020 and the Road Transport and Distribution Award 2020, and his employment contract stipulated a minimum of 38 hours per week from Tuesday to Saturday, with entitlement to overtime penalty rates for additional hours worked.
Tensions lead to dismissal from work
In the months leading up to his dismissal, the worker had experienced some tensions with a senior colleague, a driver and store person, regarding the distribution of delivery loads. The worker felt that his colleague had been unfairly allocating workloads, leaving him with more challenging deliveries.
This issue came to a head on 16 January 2024, when the worker raised concerns about a missing mattress from his truck, which he believed had been unjustly assigned to him by the senior colleague.
On the day of the dismissal, 17 January 2024, the worker and his senior colleague had a heated argument about the allocation of delivery loads. The dispute escalated, and the worker eventually left the worksite, stating that he wanted to prevent further confrontation. The senior colleague reported the incident to the company's director, claiming that the worker had said "fuck this job" before leaving the premises.
The director, relying on the senior colleague's account, proceeded to send a text message to the worker, informing him that his final pay would be arranged.
The director believed that the worker's conduct was sufficiently serious to warrant immediate dismissal, as it demonstrated hostility and verbal abuse towards a senior staff member.
The worker’s unfair dismissal claim
The worker lodged an unfair dismissal claim with the FWC, refuting the assertion that he had resigned from his employment.
While acknowledging that he had left the worksite without informing the director, the worker maintained that he had not intended to resign and had simply sought to remove himself from the confrontation with his senior colleague.
During the proceedings, the worker also raised concerns about potential underpayment of wages, claiming that he had received a flat hourly rate of $32.50 for all ordinary hours worked, which was less than the applicable Saturday penalty rate under the relevant award.
The FWC’s findings
The FWC considered the evidence presented by both parties and made several key findings. Firstly, the Commission determined that the worker's conduct and language during the argument with his senior colleague did not clearly communicate an intention to resign:
"I am not satisfied on the evidence that the worker intended to resign when he used profane language in his argument with [the senior colleague] and left the site on the morning of 17 January 2024. His behaviour was unacceptable and certainly ill-advised and may in itself constitute misconduct,” the FWC said.
However, the FWC found that the employer had failed to take reasonable steps to clarify the worker's intentions before proceeding with the termination of employment:
"[The director] made no subsequent enquiries with the worker about what had occurred between him and [the senior colleague] and whether he had in fact resigned as inferred by [the director] from [the senior colleague's] report,” the FWC said.
“[The director] accepted without question [the senior colleague's] report and proceeded to confirm by text to the worker that his final pay would be made up. His failure to clarify the worker's behaviour and intentions means that [the director] was simply not in a position to know whether the worker had in fact intended to resign,” it added.
As the employer was a small business with fewer than 15 employees, the FWC was obliged to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. The Code allows an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.
While the FWC accepted that the director genuinely believed the worker's conduct was serious enough to warrant summary dismissal, the Commission emphasised the importance of conducting a reasonable investigation and considering the employee's explanations and views:
"Normally, in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee."
In this case, the FWC found that the employer had not conducted a reasonable investigation or provided the worker with an opportunity to respond to the allegations before proceeding with the dismissal.
No reasonable investigation
“The [worker]'s dismissal was supported by a valid reason. This weighs in favour of a finding that the dismissal was not unfair. There were, however, significant procedural failures of [the employer] in effecting the dismissal,” the FWC said.
“Those failures were such that [worker] was denied any opportunity to explain his conduct or seek to persuade [the employer] that dismissal was not appropriate. This weighs strongly in favour of a finding that the dismissal was unfair,” the FWC added.
Ultimately, the FWC concluded that the worker had been unfairly dismissed by the employer. The Commission found that while the worker's conduct was unacceptable, it did not clearly convey an intention to resign, and the employer had failed to take reasonable steps to clarify the situation before terminating the employment.
The decision reminded employers to follow proper processes and conduct thorough investigations before dismissing employees for misconduct.
