Employee wins payout over unfair dismissal despite pornographic material and driving breaches
An employee sacked for serious misconduct – including distributing pornographic material at work and committing driving offences in company vehicles – has been awarded nearly $7,000 in compensation after the Fair Work Commission (FWC) found his dismissal was procedurally unfair.
In the recent decision, the FWC considered whether the dismissal of Mr Thomas by his employer, Bin Boy Environmental Pty Ltd (Bin Boy), was harsh, unjust or unreasonable.
A driver at te company, MR Thomas engaged in several forms of objectionable conduct during his employment, including placing pornographic material into other drivers’ trays in a staff area.
On top of this, he was hit with two speeding fines while driving company vehicles, at a time when he was already subject to a 12‑month good behaviour bond for excessive demerit points, was texting while driving company vehicles, and complained about safety communications in a workplace group chat used to notify employees of safety issues.
On 13 November 2025, Bin Boy dismissed Mr Thomas for serious misconduct, effective immediately. The termination letter, however, did not set out the specific allegations against him, referring only to “a review of recent incidents and your conduct.”
At hearing, the FWC accepted that all of the conduct alleged by Bin Boy had in fact occurred. The Commission also found that distributing pornographic material in the workplace, speeding in company vehicles and texting while driving were each valid reasons for dismissal.
Despite the seriousness of the conduct, the FWC held that the dismissal process fell short of the requirements of procedural fairness.
Crucially, Mr Thomas had not been warned that Bin Boy was contemplating dismissing him for the identified conduct. Nor was he clearly notified of the specific reasons for his potential dismissal or given a proper opportunity to respond and provide any explanations or mitigating factors.
As a result, the Commission found the dismissal was procedurally unfair, even though valid reasons for termination existed.
Given the procedural failures, the FWC concluded that a remedy was appropriate and ordered Bin Boy to pay Mr Thomas four weeks’ compensation for unfair dismissal.
That amount was then discounted to take into account the payment in lieu of notice which had already been made to him, resulting in a final compensation order of $6,676.
Key lessons for employers
The decision is a reminder that having strong substantive grounds to dismiss an employee will not, on its own, protect an employer from an unfair dismissal finding.
The FWC’s reasoning underscores that valid reasons are not enough. Misconduct such as distributing pornographic material at work or breaching road rules in company vehicles can clearly justify termination. But if the employer does not follow a fair process, the dismissal may still be ruled unfair.
Specific allegations must also be put to the employee. Employers should ensure that employees are told, in clear terms, what conduct is said to justify dismissal – ideally in writing – and that general references to “recent incidents” and “conduct” are not sufficient.
Employees must be given a genuine opportunity to respond. Before any decision is made to terminate, the employee should be able to respond to the allegations and present their side of the story, including any context or mitigating circumstances.
Further, procedural fairness is a core requirement. Failing to follow a proper, procedurally fair process creates a real risk that the dismissal will be found harsh, unjust or unreasonable, opening the door to compensation orders.
For employers, the decision serves as a clear warning: even where misconduct appears clear-cut, skipping or compressing the disciplinary process can prove costly. A structured process that includes written allegations, an opportunity to respond, consideration of that response and a carefully drafted outcome letter is essential to minimising unfair dismissal risks.
