Case notes importance of worker's possibility to respond
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued she was unfairly dismissed from work following the employer’s alleged lack of procedural fairness.
In its defence, the employer contended that there were valid reasons for the worker’s dismissal. Hence, no unfair dismissal occurred.
Alleged misconduct at work
Prior to the case, the worker was employed as a disability support worker for more than 3 years at several facilities of the company.
The employer argued that the worker was dismissed primarily due to the worker being disrespectful to another staff member and was insubordinate in her conduct.
Another alleged misconduct by the worker was regarding the company’s medication policy wherein on 23 July 2023, an NDA participant forced their medication through the flooring on a balcony.
The case stated that the worker was aware of such conduct, yet she did not take any appropriate procedure in circumstances where a patient misses or does not take necessary medication which was all under the company’s policy.
The employer also alleged that when the worker was directed to confirm attendance at a workplace meeting to discuss concerns regarding performance and conduct in the workplace, she willfully and deliberately failed to attend such a meeting.
More importantly, the employer alleged that she inappropriately disclosed confidential information for an unacceptable purpose without the client’s consent. Hence, the employer argued that all of these were valid reasons for the worker’s dismissal.
Conduct not ‘wilful or deliberate’
However, despite such claims, the worker argued that her dismissal was unfair because it was not for a valid reason and was disproportionate to the conduct alleged.
“With regard to the allegation that she had failed to follow a lawful and reasonable direction in not attending the meeting on 8 August 2022, the [worker] submitted her conduct was not ‘wilful or deliberate’ as alleged, but the result of a miscommunication and lack of clarity,” the case stated.
“The [worker] submitted as further mitigating circumstances that when the [employer’s] alleged lack of procedural fairness was raised with the [employer] during the disciplinary process it was not responded to or considered, in determining her dismissal,” it added.
HRD previously reported about a worker’s claim, where she said she was forced to resign after undergoing a safety incident investigation at the workplace, however, the employer argued that she resigned on her own initiative.
Commission’s decision
Ultimately, the FWC found that there were valid reasons for the worker’s dismissal. However, there was also an unfairness due to the procedural matters.
It noted that the worker’s conduct “with regard to the medication incident, photographing confidential information and providing it to a third party, her interactions with staff, and non-attendance at the meeting caused the resultant diminished trust and confidence in the employment relationship that the [employer] relied on to terminate her employment.”
However, while the Commission was satisfied that the worker was notified of the reasons for dismissal, the worker was not given the opportunity to respond.
“The issue with the meeting still being the subject of correspondence, was procedurally unfair,” the FWC stated. “In addition, the [employer] moved directly from the Show Cause response to termination without notification that this would be the process without a meeting.”
Moreover, the FWC noted that the failure of the meeting to proceed on 8 August 2022 and the failure to have a Show Cause meeting hindered the worker’s union representative to be a support person. Hence, adding to the procedural unfairness.
Consequently, the Commission said that given the circumstance, the worker’s reinstatement would be inappropriate. Instead, compensation is under consideration for the procedural flaws found in the case.
