Keeping it fair in the workplace

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The Fair Work Commission (FWC) has made it clear in its decisions on unfair dismissals that there are two main considerations: whether there was a valid reason for termination or not; and whether procedural fairness was provided.

Procedural fairness looks at the process that the employer adopted in effecting the dismissal of an employee. Procedural fairness is a primary factor for consideration in any unfair dismissal matter.  A valid reason for termination on its own will not be sufficient for an employer to successfully defend an unfair dismissal case.

Failure of the employer to apply procedural fairness before an employee’s dismissal will usually result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation (up to the equivalent of six months’ pay).

Many will recall the publicity surrounding the decision of Gosek v Illawara Coal Holdings where Mr Gosek directed foul language at fellow employees and supervisors.  Up until this decision, the accepted view was that once an employee swore at a workplace and directed the offensive language at a fellow employee or a supervisor, it was a justified termination of employment.

But, in this case, not only did the FWC find that Mr Gosek’s termination of employment for this type of behaviour was unfair, it ordered the employer to reinstate Mr Gosek within seven days.

The employer did not follow procedural fairness. The employee was summarily dismissed and was told not to return to work. Instead, the FWC said that procedural fairness must still be applied. The employer should have allowed the employee to settle down then should have invited the employee to a meeting and given him the opportunity to explain his behaviour. If he had that opportunity, the evidence that he would have put forward would have been:

  • Mr Gosek had an unblemished employment record in his 11 years’ service at Illawarra Coal, which rendered his behaviour “out of character”;
  • he immediately apologised for his behaviour; and
  • the explanation Mr Gosek gave for his conduct including: the severe impact of his mental illness on his family which led to his excessive drinking and his difficulty adjusting to the effect of increased medication.

The decision was appealed this year, and the employee was once again successful. The Full Bench of the FWC is not saying that anyone can swear in the workplace to their colleagues and get away with it ‒ indeed, if faced with a different set of circumstances it is entirely possible a different conclusion would have been reached. It does mean employers really need to pay attention to the circumstances of each misconduct case before them.

So, in this case, we had a valid reason for dismissal but the procedure undertaken was not fair and therefore the employee was reinstated.

When effecting a dismissal, employers must ask have they given the employee a fair go all around? And, importantly, has the employee had the opportunity to have their say?

Christie Howson is Solicitor Director, Employment and Litigation at Osborn Law

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