Employer dismissed worker for failing to report incident, but was it proper procedure?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who challenged his termination.
He argued that he had acted appropriately in handling a complaint about a colleague’s interaction with another person and that his employer failed to follow a fair process before dismissing him.
The worker maintained that he had investigated the situation thoroughly, consulted those involved, and determined that no further action was required.
He claimed that his assessment was based on his understanding of the applicable rules and that he had not been instructed to report the matter differently.
However, the employer took a different stance, asserting that the worker had failed to meet his responsibilities and had ignored important reporting obligations.
The dispute arose after an education assistant had an interaction with a student that led to a complaint from the student’s parent. The worker, who was responsible for managing the school’s response, met with the student’s parent and conducted an internal review.
He determined that the incident was minor and did not need to be reported under the law. However, the employer believed otherwise and placed the worker on suspension, later terminating his employment.
The employer stated that the worker failed to recognise that the incident fell under reportable conduct laws. According to the employer, an industry body had advised that the incident required mandatory reporting, yet the worker disputed this.
The employer also accused the worker of prioritising the reputation of the staff member involved over the school’s legal obligations.
The worker denied these allegations. He argued that he had thoroughly investigated the incident, gathered statements from those involved, and determined that it was not intentional or reckless conduct requiring mandatory reporting.
He also said that the employer never directed him to report the incident and that he had relied on his professional judgment in assessing the situation.
The employer argued that the worker’s response was inadequate and risked breaching legal obligations. The governing body of the school decided to investigate the matter further and later dismissed the worker, citing serious misconduct. The termination letter stated:
“[The worker] failed to identify the incident as reportable conduct under the Act and did not do so as required under the Act.”
The employer also claimed that the worker had not updated school policies to reflect new legal requirements, which it said was part of his responsibilities. The employer stated:
“[The worker’s] failure to update school policies, collectively constitute serious misconduct... the governing body has lost complete confidence and trust in [the worker].”
The worker disagreed, arguing that there was no specific deadline for policy updates and that any shortcomings in the policy should not have resulted in his dismissal. He also noted that other managers had not been held responsible for similar policy gaps.
The FWC examined the worker’s handling of the incident and his understanding of legal reporting obligations. It found that while the worker may have believed he was following the correct process, his interpretation of the law was flawed.
Under the law, an action is considered physical assault if it is either intentional or reckless, not necessarily both. The Commission noted that the worker appeared to base his decision on an incorrect reading of this requirement.
The Commission also found that the employer did not follow a fair dismissal process. The investigation into the worker’s conduct was conducted without his input, and he was not given a chance to respond to concerns before the employer had already decided to take disciplinary action. The FWC stated:
“[The worker] was presented with the outcome in a letter as a fait accompli and asked to explain—via email—why [he] should not be dismissed. I cannot accept that this lack of direct engagement with [the worker] both during the investigation and when [he] was asked to defend [his] employment, represents a proper and fair process.”
The Fair Work Commission found that the employer had a valid reason to dismiss the worker. His failure to report the incident and update policies created compliance risks for the school. However, the Commission did not agree that his actions amounted to serious misconduct warranting immediate dismissal. The Fair Work Commission ruled:
“I am satisfied that the employer had a valid reason for termination. However, I do not accept that [the worker’s] conduct meets the test of serious misconduct entitling the employer to summarily terminate [him].”
The Commission also considered the significant impact of dismissal on the worker’s employment prospects. It noted that he was based in a regional area where job opportunities in his field were limited and that he had not received any prior warnings about his performance.
The worker sought reinstatement, arguing that the governing body had not completely lost trust in him. However, the Commission disagreed, noting that reinstatement was not appropriate given the strained relationship between the worker and the school’s leadership.
Instead, the Commission awarded compensation, finding that while the dismissal had a valid basis, it was carried out unfairly. The specific amount of compensation was left to be determined in a separate hearing, where the worker’s post-dismissal earnings and job search efforts would be considered.
