When you’re running a business, it’s not uncommon to hear things like

  • “They stole from us.”
  • “They were completely inappropriate at work.”
  • “Surely that’s instant dismissal.”

In many cases, the behaviour really is serious enough to justify termination. But a recent decision from the Fair Work Commission is a timely reminder for business owners, even when the misconduct is obvious, dismissal can still be found unfair if the process isn’t handled correctly. In other words, being right about what happened is not enough. You also have to be right about how you respond to it.

The case: Serious misconduct, clear wrongdoing

In this matter, an employee working as a driver for Bin Boy Environmental Pty Ltd engaged in multiple forms of serious misconduct.

The behaviour included

  • Distributing pornographic material in a workplace staff area
  • Receiving speeding fines while driving company vehicles
  • Driving while texting
  • Breaching road safety expectations while already subject to a good behaviour bond
  • Raising inappropriate complaints in workplace communication channels

On the face of it, most business owners would say “That’s instant dismissal.”

Importantly, the Fair Work Commission agreed the conduct did in fact occur, and that it did provide valid reasons for dismissal. So, the employer was right… weren’t they? Not quite. The problem wasn’t the decision; it was the process.

Despite having strong grounds to terminate employment, the employer lost the case on one key issue: Procedural fairness

The employee was not properly informed of

  • The specific allegations being considered
  • The seriousness of potential consequences (including dismissal)
  • A clear opportunity to respond before the decision was made

Instead, the termination letter referred broadly to “recent incidents and conduct.” To a business owner, that might sound reasonable in the moment. But legally, it’s not enough. The Fair Work Commission found that this lack of clarity and opportunity to respond made the dismissal procedurally unfair, even though the misconduct itself was proven.

The outcome? Nearly $7,000 in compensation awarded to the employee.

The key lesson for business owners

This case highlights a common trap. Serious misconduct does not automatically equal safe dismissal. Even when the behaviour is extreme, employers must still follow a fair and structured process.

The law is not only concerned with what happened – it is equally concerned with how the decision was reached. Why this matters more than most business owners realise. From a practical business perspective, it’s easy to assume

  • “We have the evidence”
  • “The behaviour is unacceptable”
  • “No tribunal would disagree with us”

But unfair dismissal claims are not just about whether misconduct occurred. They focus heavily on

  • Communication
  • Process
  • Opportunity to respond
  • Procedural steps taken before termination

Failing in these areas can turn a defensible dismissal into a costly one. If you are a business owner managing misconduct, make sure you always

1. Clearly outline the allegations – Be specific. Not “recent incidents,” but exactly what happened, when, and how.

2. Put dismissal on the table – If termination is being considered, the employee must be told.

3. Give a real opportunity to respond – Not a rushed conversation, an actual chance to explain, respond, or provide context.

4. Consider the response properly – Don’t decide before you’ve heard them out.

5. Document everything – A clear paper trail protects both the business and the decision-making process. The key takeaway? Don’t let certainty create risk

As a business owner, it’s easy to feel confident in “clear-cut” situations. In fact, those are often the riskiest cases because urgency can lead to shortcuts. As this decision from the Fair Work Commission shows, even serious misconduct can still result in an unfair dismissal finding if process is ignored.

Final thought

Yes, some behaviour absolutely justifies termination but in employment law, the question is never just “Did they deserve to be sacked?” It’s also “Did we follow a fair process before we did it?”

For business owners, getting both right is what protects your business from costly mistakes. Need help getting your process, right?

If you’re unsure whether your disciplinary process is watertight, or you want to make sure your business is protected before acting, get in touch with our team. Don’t rely on assumptions or AI shortcuts when it comes to employment decisions getting the process right the first time is what protects your business.

We can review your situation, guide you through the correct process, and help you reduce the risk of an unfair dismissal claim before it becomes a costly problem.