Employee defeats eight allegations of misconduct to win unfair dismissal suit

In a recent FWC decision, the respondent submitted that the primary reason for the dismissal was the applicant’s direction to employees not to “clock-in” to the respondent’s timekeeping record on a public holiday last year. The respondent also raised a number of serious misconduct and performance issues on the applicant’s part, which included:

• underreporting the number of staff members he was rostering
• damaging a company vehicle and failing to report it
• failing to attend meetings with the respondent
• failing to answer calls during working hours
• failing to follow COVID-19 testing and reporting procedures
• failing to attend work as required
• use of inappropriate language towards colleagues and clients

Considering each of the allegations separately, the Commission concluded that none could represent a valid reason for the applicant’s dismissal. In relation to the public holiday incident, the Commission took issue with the fact that, upon discovering the issue, the respondent did not conduct an investigation, attempt to rectify the underpayment or otherwise counsel or discipline the applicant.

“If an employer condones an employee’s misconduct, then at common law the right to summarily dismiss the employee for that misconduct will be treated as having been waived,” the Commission said. It held the respondent’s lack of action meant the issue could not then be used as a sound and well-founded reason for the dismissal.

The Commission found faults with every other allegation put forth, including the lack of evidence submitted to corroborate the claims, and the claims that were not serious enough to warrant a dismissal. In relation to the COVID-19 claim, the Commission found no evidence of a company procedure that should have been followed by the applicant. Ultimately, the Commission was satisfied that the absence of a valid reason and consequent procedural unfairness amounted to a finding of unfair dismissal. A remedy has yet to be issued. 

Key Takeaways for HR:

• Following the discovery of misconduct, an employer must take immediate steps to investigate and rectify the issue and counsel and discipline the employee
• If these procedures are not followed, the employer does not have the right to then rely on the misconduct to summarily dismiss the employee