FWC highlights importance of critical workplace trust, accurate reporting
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was terminated for serious misconduct after allegedly falsifying work counts and creating workplace disharmony.
The worker argued he was unfairly dismissed, claiming he never received adequate opportunity to verify the accuracy of his work count.
He maintained that management failed to consider alternative explanations for the discrepancy, such as items becoming dislodged or falling out of their container during his shift.
The worker's challenge centered on whether the nine-day delay between the alleged misconduct and his termination meeting demonstrated a lack of procedural fairness, and whether the employer had properly investigated before making their decision.
The worker was employed as a poultry process worker from October 2021 until October 2024, working in a processing area licensed by the employer but located in an industrial building operated by Bartter Enterprises Pty Ltd, part of the Baiada Group. His first language was Mandarin, and he had limited English skills.
Employees received bonuses for various poultry processing tasks, with the highest bonus paid for deboning chickens. After deboning each chicken, workers placed the tail in a crate under their worktable. At shift end, employees counted these tails and recorded the number on a tally sheet placed inside the crate.
The tally sheets from September 30, 2024 revealed that the worker consistently deboned more chickens than any other staff member at each time slot and significantly above the average. The worker signed the tally sheet confirming his count was accurate.
The FWC noted in its decision: "A random audit was performed by [the employer's] client, BMA, at the end of [the worker's] shift. The audit by the BMA Team Leader found that [the worker's] crate contained 24 fewer tails than he had reported, entered '-24' and initialled their findings under the column titled 'TL Check'." Two additional people verified this count, and a search for missing tails found nothing.
On October 8, 2024, the worker met with the employer's director who raised two concerns: that the worker had created disharmony by making negative remarks about management, and that he had falsified his tail count.
During this meeting, the director told the worker that another employee reported he had told them "not to listen to the boss," had been "saying bad things about [the director]," and had said that "[the director] is a bad boss and doesn't look after his staff." The worker denied making these statements.
Regarding the incorrect count, the director showed the worker his employment contract and the tally sheet with the discrepancy. The worker denied his count was inaccurate. The director explained that company policy specified that counts would be audited randomly, miscounts up to 5 would be considered human error, but larger discrepancies could be deemed fraudulent and result in immediate dismissal.
At the end of the meeting, the worker received a termination letter citing both creating disharmony and incorrectly over-reporting tails as reasons for his dismissal. The termination letter referenced section 6.6 of the worker's employment contract, which outlined the count audit process and consequences for inaccuracies.
The FWC examined whether there was a valid reason for the dismissal related to the worker's capacity or conduct, noting that a valid reason must be "sound, defensible or well founded" and not "capricious, fanciful, spiteful or prejudiced."
Under cross-examination, the worker admitted refusing to cut chicken "nibbles" because they paid less per hour than deboning whole chickens. The Commission also heard evidence that one month before the incident, the worker had received and acknowledged a text message reminder: "Team make sure your counts are 100% correct everyday. If you are unsure ask a supervisor to double check or another team member to check for you."
The FWC found numerous inconsistencies in the worker's testimony: "At hearing, I found [the worker] answered questions clearly when the answers favoured him, however when the answers did not favour him, his answers were vague and difficult to understand, even with the assistance of the interpreter."
The Commission concluded: "Whilst [the director's] concerns about [the worker's] conduct in respect to creating disharmony in the workplace in isolation might not be enough to constitute a valid reason, when considered in conjunction with the breach and its magnitude, destroyed the trust and confidence [the director] had in [the worker]. This supports a finding that there was a valid reason for his dismissal."
The Commission considered whether the worker had been properly notified of the reason for dismissal and given an opportunity to respond. Despite the worker's claims to the contrary, the FWC found he was provided with the tally sheet to check and respond to during the termination meeting.
The FWC acknowledged some procedural flaws, including the nine-day delay between discovering the incorrect count and the meeting: "It is well established that in circumstances where it believes an employee has engaged in conduct so serious it would warrant termination if proven, they should have stood the employee down (ordinarily on full pay), while that investigation is underway. This is a flaw in the termination process."
The Commission also recognized the employer's size and lack of human resource expertise as factors affecting the process: "It is my finding that [the director] lacked the sophistication and specialist expertise of a larger organisation and that this impacted on the imperfect termination process." This affected how the company had handled previous issues that might have warranted more formal warnings.
The worker offered alternative explanations for the missing tails, including that they might have been dislodged or fallen out. However, the FWC noted these explanations were not offered during the termination meeting, and the worker's evidence contained contradictions about whether he had previously used a second crate when the first became full.
The Commission concluded that the worker's conduct constituted serious misconduct rather than a performance issue: "Where there is a clear financial benefit to [the worker] and a financial detriment to [the employer] and it occurs in circumstances where an employee has been made aware that incorrect reporting of this nature is considered gross misconduct that would result in instant dismissal, the issue cannot be properly said to be only a performance issue."
The FWC explained: "The Fair Work Regulations define that serious misconduct includes fraud. Fraud arises for many reasons including when a person falsifies or creates misleading information in order to receive a benefit."
The Commission noted that the employer's "business operates on the basis that a high degree of trust is placed in its employees to accurately record the number of tails," emphasising the importance of honesty in self-reporting systems tied to financial incentives.
After weighing all relevant factors under section 387 of the Fair Work Act 2009 (Cth), the FWC dismissed the worker's unfair dismissal application, concluding: "Whilst I accept the termination process was imperfect, I am persuaded that the essential core elements were adequately addressed when weighed in all the circumstances."
