What can employers learn from Todd Carney’s unfair dismissal?

by Chloe Taylor17 Mar 2015
Todd Carney, former Dally M medallist, has won an unfair dismissal case against NRL club the Cronulla Sharks.

The tribunal reportedly took place within the NRL’s appeals structure. News Limited reported that Ian Callinan, the chairman of the sporting body’s appeals committee, found that the Sharks failed to follow the correct processes before dismissing Carney.

Carney’s employment was terminated when a photograph of him emerged on Instagram in which he was attempting to urinate in his own mouth.

The club was found to have acted unfairly by not allowing Carney to discuss his case with the board before sacking him.

In her blog, Helen Carter, director at PCC Lawyers, urged employers to ensure they act with procedural fairness when considering a termination.

“Without procedural fairness, you can’t actually be sure whether or not the right substantive decision has actually been made,” she explained. “But the employers’ obligation is not simply to hear the employee's side of the story before terminating the employment, the obligation is actually to defer their decision on whether or not to terminate until after the employee has had an opportunity to respond.”

Carter also spoke to HC to clarify the biggest lesson for employers to be taken from Carney’s case.

“The main point for employers is that it doesn’t matter how serious they consider the issue, this does not excuse a failure to follow proper procedural fairness,” Carter told HC. “In my career I have seen a lot of times when employers have fallen into error because they believe that a video or photo gives them such “strong evidence” of wrongdoing that they do not need to follow proper process in investigating a matter.”

Reports claim that Carney could now use the appeals committee’s finding as grounds for legal action against Cronulla.

“The big oversight was that someone needed to check that the process being followed was correct,” said Damien Keogh, the club’s chairman. “What's important to remember here is that it's not a question of the facts, it's a question of the process, but the reality of the situation is, the decision would likely have been the same.”

He added that he wouldn't rule out an eventual return to the NRL from Carney, but said that there has been “a lot of water that has flown under the bridge since last June”.
 

COMMENTS

  • by Sharks Fan 17/03/2015 10:16:58 AM

    I'm all for procedural fairness, but this article fails to provide a holistic understanding to the reader.

    At least in the Fair Work Commission, when dealing with unfair dismissal under the Fair Work Act, if the seriousness of the conduct outweighs the procedural defects, then a dismissal can still be fair.

    What's not reported here is whether the NRL appeals tribunal considered this.

    If they did, then they obviously deemed the conduct insufficiently serious - there's a story for you...

  • by Paul 17/03/2015 11:45:22 AM

    This article is actually a great article and defines what many managers never seem to understand - or not want to understand.

    The only time the seriousness of the conduct will outweigh the procedural fairness process is for proven and/or defined - misconduct.

    But even for misconduct we still have to hear a response from alleged and defer to ensure that its facts we are acting on and to determine whether the action of the alleged is actually misconduct. Unfortunately any decision can be contested. Its just part of the process.

  • by David 17/03/2015 12:02:47 PM

    Water under the bridge (pun intended?)

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