Commission weighs worker's misconduct against length of service, language skills, and other mitigating factors
The Fair Work Commission (FWC) recently dealt with an employer's appeal against a decision that found a worker's dismissal to be harsh, despite there being a valid reason for the dismissal.
The employer sought permission to appeal the decision, arguing that a December 23, 2023 decision by Commissioner Stephen Crawford had failed to properly consider the worker's misconduct and the seriousness of his actions.
The case looked into the worker’s summary dismissal and the factors that determine whether a termination is harsh, unjust, or unreasonable.
The FWC had to weigh the worker's misconduct against his length of service, language skills, and other mitigating factors. The appeal raised questions about the Commissioner's findings and the weight given to various pieces of evidence.
The initial decision
The worker, employed as a machine operator, was dismissed for serious misconduct on June 28, 2023. The Commissioner found that while there was a valid reason for the dismissal, the worker's conduct did not warrant summary dismissal.
The Commissioner considered reinstatement inappropriate and ordered an award of compensation.
The employer appealed the decision, arguing that the Commissioner had failed to consider significant aspects of the evidence, including the worker's previous insubordination, false statements, and the impact of his misconduct on the production line.
Serious misconduct and harshness
The FWC noted that the Commissioner had correctly identified that the summary dismissal of the worker was a matter to be considered under s.387(h) of the Fair Work Act 2009 (the Act) and that a conclusion that a summary dismissal was disproportionate to the gravity of the misconduct may support a finding that the dismissal was harsh.
The FWC found that the Commissioner had adopted an established approach in considering the factors in ss 387(a) to (h) and that no error was found in the Commissioner's reasoning regarding these factors.
However, the employer argued that the Commissioner had failed to consider several instances of the worker's insubordination and had relied mainly on video recordings in making his decision.
The FWC found that the Commissioner had clearly considered the alleged instances of insubordination and had made no error of fact in his findingsa.
Mitigating factors and language skills
The FWC noted that the Commissioner had found several mitigating factors that made the termination of employment without notice a harsh one.
These factors included the worker's 13 years of service, his unblemished record for approximately the first 12 and a half years, his age, and the fact that he spoke English as a second language.
The employer contended that the Commissioner's assessment of the worker's English skills was misplaced and that the worker had no problem speaking fluent English.
However, the FWC considered that there was no error in the Commissioner's approach in evaluating the worker's language skills as a mitigating factor alongside his age.
Weighing the evidence
The FWC found that the Commissioner's findings in relation to the mitigating circumstances and his conclusion that the termination of employment was harsh were made after weighing those considerations.
The FWC was satisfied that the Commissioner had considered the instances of insubordination and had made no error of fact.
The findings of mitigating circumstances appeared to have been properly made based on the evidence before the Commissioner.
In conclusion, the FWC found no significant error in the Commissioner's decision that would warrant granting permission to appeal.
The appeal raised issues regarding the Commissioner's consideration of evidence and the weight given to various factors, but the FWC was satisfied that the Commissioner had adopted an appropriate approach and made findings that were open to him based on the evidence presented.
