What constitutes ‘serious misconduct’ for a summary dismissal?

A recent FWC case clarified the parameters for a valid summary dismissal

What constitutes ‘serious misconduct’ for a summary dismissal?

The applicant worked as a mushroom harvester for 14 years. Until her dismissal, she worked eleven-hour shifts and was paid less than the minimum wage under the relevant Award. The applicant’s work involved the use of a harvesting knife. Company policy required workers to return their knives to allotted wall hangers, following the end of a shift.

On 16 August, after her shift had finished and the applicant had left the workplace, the supervisor noticed the applicant’s knife was missing. The supervisor immediately telephoned the applicant, but neither could locate the missing knife. As the missing knife presented a contamination risk, the respondent checked all product that had been prepared by the applicant that day. Shortly after commencing her next shift two days later, the applicant found the missing knife. She alerted the respondent and continued her work. Later that day, the applicant was called to a meeting with the respondent’s harvesting manager and HR manager.

During the meeting, the applicant was given a pre-prepared letter of dismissal, stating that her conduct caused serious and imminent risk to the health and safety of a person, and to the business. The respondent alleged that the business was required to maintain “stringent food safety practices” and that the applicant’s conduct created a significant risk of contamination. The Commission found that the applicant’s conduct was not wilful nor deliberate but rather an “unintentional, negligent action”. It further held that given the respondent checked all product, there was no serious and imminent risk of harm to a person or its business.

“Rather than adopt an objective, comprehensive and fair-minded approach to the missing knife incident, the employer focused all blame upon the applicant,” the Commission said.

The Commission found that the applicant’s unintended but serious mistake could have resulted in some other form of disciplinary action. However, it held that the applicant’s conduct had been mischaracterised as serious misconduct “in circumstances where no such finding could properly be made.”

Without a valid reason, combined with the lack of opportunity afforded to the applicant to respond during the meeting, the Commission was satisfied in favour of an unfair dismissal.  Compensation of $19,240.00 was ordered to the applicant.

Key Takeaways:

  • Although there are circumstances where the unintentional negligence of an employee may constitute serious misconduct, such circumstances are rare
  • Employers must ensure they have a valid reason when summarily dismissing an employee

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