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Workplace Relations 24 February 2017

Unfair dismissal – does the punishment fit the crime?

A number of recent decisions of the Fair Work Commission (the Commission) have highlighted that employers must be careful not to over-react to a situation, instead ensuring the “punishment fits the crime” if and when deciding to dismiss an employee.

When an employee makes an unfair dismissal application under the Fair Work Act 2009, the Commission must consider whether the dismissal was harsh, unjust or unreasonable. In reaching its conclusion, the Commission takes various factors into account, including whether there was a valid reason for the dismissal and whether the employer followed a fair process before dismissing the employee.

A valid reason for the dismissal carries significant weight, to the point that it may justify dismissal even if the employer did not follow proper processes. However, as a number of recent cases illustrate, dismissal may still be unfair even if there was a valid reason for it.

Hospital coordinator sends disparaging emails
In Beamish v Calvary Health Care Tasmania Limited, a clinical services coordinator at a Tasmanian Catholic hospital was dismissed for sending emails to colleagues that disparaged management figures, including referring to the Director of Mission as “Mission Impossible” and joking about using a voodoo doll. The hospital said that employee had failed to uphold its values of hospitality, healing, stewardship and respect.

The Commission described the emails as inappropriate and ill-advised, and found that they breached some of the values and behaviours in the code of conduct. However, the Commission also commented that the hospital itself may be expected to adhere to the same values, and that arguably the employee had been dealt with harshly when this was taken into account.

Considering that the employee was a committed member of the organisation and had held senior roles for a long period of time, the Commission said that the “punishment did not fit the crime” and ordered that the employee be reinstated.

Maintenance engineer drives aircraft tow tug to lunch
In Gill v Jetstar Airways Pty Ltd, a Jetstar aircraft maintenance engineer at Avalon airport was dismissed for driving an aircraft tow tug on a public road to a nearby service station to buy lunch. He had been given the tow tug to use at work that day because his usual van had broken down.

The Commission found that there was a valid reason for his dismissal: driving an unregistered vehicle that was not suited to the purpose on a public road breached safety standards.

However, the safety breach was not deliberate, and there was evidence that other employees who had committed serious safety breaches in the past had not been dismissed. The employee also had an unblemished employment history and would have found it difficult to obtain other work given his age (60 years) and the state of the aircraft maintenance industry.

Consequently, the Commission decided that although there was a valid reason for dismissal, the dismissal was harsh under all the circumstances and therefore ordered that the employee be reinstated to a position at Tullamarine airport.

Employee uses company fuel card while on holiday
In Kirkbright v K&S Freighters Pty Ltd, a freight company employee was dismissed for sending freight without the necessary documentation and for using a fuel card without permission while on annual leave.

The Commission decided that the employee’s misconduct was a valid reason for the dismissal. However, it also found that the investigation process “left much to be desired” because the employee was not informed that his conduct was being investigated or provided with an opportunity to respond. The Commission also took into account the employee’s 30 year unblemished employment history.

For these reasons, the Commission decided that although there was a valid reason, the dismissal was “disproportionate and unreasonable” when all of the employee’s circumstances were taken into account, and awarded compensation of approximately $11,000.00.

These cases highlight that a valid reason will not always be sufficient to justify a dismissal. Other circumstances, such as the employee’s record, the objective seriousness of the misconduct and the treatment of other employees in similar situations, must also be considered.

Ultimately the correct outcome for an employer is often a question of judgment. It is possible that the Commission’s judgment may differ from the employer’s, but a useful guideline is to ask whether the punishment of dismissal fits the crime, or whether there is another sanction that would adequately address the misconduct.

At Coulter Legal we provide professional assistance to our clients to reduce the risks of an unfair dismissal application by ensuring their employee management processes are thorough and compliant with the Fair Work Act 2009.

If you require advice or further information in relation to any of the matters discussed in this article, please contact our Workplace Relations Team on 03 5273 5236.

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