The Fair Work Commission (FWC) recently dealt with a case involving an employee who alleged she was unfairly dismissed following the employer’s alleged lack of procedural fairness. In its defence, the employer stated there were valid reasons for the employee’s dismissal and therefor, no unfair dismissal occurred.
Allegations of misconduct
The employee was employed as a disability support worker for the employer for more than 3 years at several sites. The employer stated that the employee was dismissed mainly due to being disrespectful to another team member and was insubordinate in her conduct.
Additionally, the employee is alleged to have engaged in misconduct regarding the businesses medication policy where in July 2023, an NDA participant forced their medication through the flooring on a balcony. The employee was aware of the incident yet did not follow company policy where a patient misses or does not take necessary medication.
The employer also asserted that when the employee was directed to confirm attendance at a workplace meeting on 8 August 2023 to discuss concerns regarding performance and conduct in the workplace, she wilfully and deliberately failed to attend such a meeting.
More importantly, the employer alleged that the employee inappropriately disclosed confidential information for an unacceptable purpose without the client’s consent. Hence, the employer argued that all of these were valid reasons for the employee’s dismissal.
Employees response
The employee argued that her dismissal was unfair because it was not for a valid reason and was disproportionate to the alleged misconduct.
With regards to the employee’s failure to follow a lawful and reasonable direction in not attending the workplace meeting on 8 August 2023, the employee stated her conduct was not wilful or deliberate, but was the result of a miscommunication and lack of clarity.
The employee further asserted that when she raised with the employer the alleged lack of procedural fairness during the disciplinary process, it was not responded to or considered, in determining her dismissal.
The FWC’s decision
Ultimately, the FWC found that there were valid reasons for the employee’s dismissal. However, there was also an unfairness due to the procedural matters.
It noted that the employee’s conduct with regards to the medication incident, photographing confidential information and providing it to a third party, her interactions with other employees, and non-attendance at the meeting “caused the resultant diminished trust and confidence in the employment relationship that the employer relied on to terminate her employment.”
However, while the FWC was satisfied that the employee was notified of the reasons for dismissal, she was not given the opportunity to respond.
The FWC found that the issue with the meeting still being the subject of correspondence was procedurally unfair. Additionally, the employer moved directly from the Show Cause response to termination without notification that this would be the process without a meeting.
Furthermore, the FWC noted that the failure of the meeting to proceed on 8 August 2022 and the failure to have a Show Cause meeting hindered the employee’s union representative to be a support person. Hence, adding to the procedural unfairness.
Consequently, the FWC said that given the circumstance, the employee’s reinstatement would be inappropriate. Instead, compensation is under consideration for the procedural flaws found in the case.
Key learnings for employers
The importance of procedural fairness cannot be overstated as the steps taken by an employer are just as important as any decision made. In instances where an employee is terminated, procedural fairness is of particular importance and should be carefully adhered to. Failing to do so could be deemed unlawful and have a significant impact in unfair dismissal cases.
Making the decision to terminate an employee is difficult for any manager. However, when the decision is made, it must be done so in a manner that gives the employee a chance to be heard, is free from bias, and with some logical foundation that allows an employer to later justify any decision made.
If you need help understanding procedural fairness in the workplace or advice on complex employee matters, get in touch with our highly skilled team of HR professionals.
Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.