Three decisions made by the Fair Work Commission this year have highlighted that despite clearly abhorrent behaviour by an employee, employer’s may still may be found to have unfairly dismissed their staff on procedural grounds. This is warning to employers that, in providing any disciplinary action, or in coming to decisions to terminate employees, it is imperative that a proper process is both followed and documented.
Robert Solin v Chevron Australia Pty Ltd  FWC 2584
Chevron Australia, a large mining company, was ordered to reinstate a former employee (Mr Solin) who had been fired for making extremely derogative racist and sexist comments. Following his termination, the employee applied to the Fair Work Commission to be reinstated, who found that despite the Human Resources manager of Chevron holding an investigation into the incident, the employee had been unfairly dismissed. This decision was made on the basis that the employer had failed to follow the correct process in their investigation and termination procedure. In this case, the Commission took into account that in undertaking their investigation, Chevron had failed to consider that Mr Solin:
• had an otherwise unblemished three-year employment record;
• was apologetic for the statements he made;
• had not realised others would overhear his comments; and
• did not realise the comments he made were offensive, until after the fact.
The Commissioner in this case also highlighted the importance of not appearing to come to a decision before the investigation is complete. This case provides a clear example that despite the thorough nature of an investigation, it is imperative that all considerations are not only taken into account, but given adequate consideration.
West v Holcim (Australia) Pty Ltd  FWC 2346
Similarly, in the case of West v Holcim (Australia) Pty Ltd, an employee was dismissed on the basis that he had engaged in dangerous and reckless behaviour. Specifically, he was found to have allowed a casual labour hire employee, who had no experience or training in crane operation, to operate a crane and then failed to report a near miss incident in which another employee was almost struck by large metal pieces held by the crane. The Commission ordered that West be reinstated after considering the evidence before them that he had engaged in such conduct in the past and suffered no reprimand or warnings.
This case highlights the critical importance that employers ensure they address misconduct and issue warnings each and every time they arise, for example by giving a written warning.
As this decision indicates, regardless of how clear the misconduct may appear, without evidence to provide that an employee was aware that their former actions constituted a breach of policy or misconduct, a failure to give warnings may provide evidence that such conduct was acceptable.
Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores  FWC 32
Another recent case, Walker v Salvation Army, highlights the importance of providing employees an opportunity to clearly see all the evidence that the employer has against them, to allow them to adequately respond in an investigation procedure. In this decision, Walker was alleged to have stolen money from the till of her employer, the Salvation Army. The evidence of this was in the form of CCTV footage. The Commission found that the employee was not provided with an adequate opportunity to view or respond to the CCTV footage. Due to the employer’s failure to provide the employee with an adequate opportunity to view the CCTV footage, the Commission formed the view that Ms Walker had been unfairly dismissed. The Salvation Army was ordered to pay the employee $22,405. This case highlights the importance of ensuring an employee is awarded procedural fairness throughout the disciplinary process and given access to all the evidence before them, prior to coming to any decision, as a failure to do so may see any response made to the allegations as insufficient.
It is easy to see why employer’s come to decisions to terminate where there is misconduct involved. However, each of these recent cases highlight the imperative nature of employer’s following proper procedure, as despite the severity of an employee’s actions, even if they are as obvious as making racial and sexual slurs or stealing money, a failure to do so may result in you paying unfair dismissal claims, being ordered to reinstate an employee and paying hefty fees to defend your business in the Fair Work Commission.
At Cube Workplace Solutions, our experienced team can provide you with detailed advice on the steps you should take before you consider dismissing an employee. Contact our team today on 1300 122 823.