In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.

This requirement for procedural fairness can prove to be difficult if an employee, when faced with the prospect of disciplinary action, engages in a course of action that delays or frustrates the disciplinary process – something that is unfortunately not uncommon.

In a recent decision, the Fair Work Commission (FWC) upheld the summary dismissal of an employee despite the employer not obtaining the full response from the employee to allegations of misconduct.

In Brown v South Coasts Trucks and Machinery [2020] FWC 2249, the FWC heard an employee’s claim that he had had been unfairly dismissed for storing hydroponic equipment used in the cultivation of marijuana at the workplace.

The employee was a sales representative for a trucks and excavation equipment company, and was the only employee based at its Queanbeyan site at the time of his dismissal.

During an unannounced site visit, the employer discovered that the employee had stored personal effects on site, including hydroponic lamps and a dehydrator. The employee then removed some of the equipment at the direction of the employer, however, had left some of the items behind. Those remaining items were then inspected by the Police, who confirmed that there was marijuana residue in the dehydrator.

The employer wrote to the employee on two occasions advising him of its concerns that he may have used the equipment to propagate marijuana on its worksite and directed him to a meeting to provide an explanation.

The employee’s treating doctor then wrote to the employer and advised it that the employee was suffering from work-related anxiety and depression, and that it would be detrimental to the employee’s mental health if he attended the meeting. The treating doctor confirmed that the employee would not be fit to attend any work-related meeting now or in the future unless certified fit to do so.

The employer then directed the employee to provide his response to its concerns in writing, in lieu of a face-to-face meeting.

The employee responded in writing to the effect that he considered the employer’s repeated requests for meetings and statements to be bullying, and that he was preparing a statement to be provided to his workers compensation insurer which should be considered as his response.

The employer then decided to dismiss the employee for serious misconduct. Specifically, the employer was satisfied that the employee had engaged in wilful or deliberate behaviour inconsistent with the continuation of the employment contract, and that he refused to comply with a lawful and reasonable instruction.

Before the FWC, the employee claimed that the employer had no reason to dismiss him because he had obtained permission to store his personal effects at the workplace, and that the employer had no evidence that he had engaged in any illegal activity. The employee also claimed that it was unfair for the employer to dismiss him given his vulnerable mental state.

The employer argued that it was justifiably concerned that the employee had engaged in the production of illegal drugs in the workplace and that the dismissal was warranted in circumstances where the employee had only sought permission to store welding gear on the premises, and where it had provided him multiple opportunities to respond to its concerns.

The FWC agreed with the employer. It was of the opinion that “one does not need to be Einstein to figure out that storing drug related material at the workplace without the approval of one’s employer is wrong”, and that even the most understanding employer would have been concerned about what was happening at the site and what it meant for the business and its reputation. It also noted that the employee was known to the Police having previously been charged with cultivation of marijuana at his home.

The FWC was also satisfied that the employer had reasonably directed the employee to respond to its concerns about his conduct, and that the employee would have been able to comply with that direction notwithstanding his mental state. The FWC pointed out that the treating doctor’s evidence was that the employee would have been fit to answer the question of why he had stored the items at the workplace, and in any event, the employee had been well enough to make inquiries about his commission payments and leave entitlements during that period.

The FWC found that the employer was entitled to make its decision prior to receipt of the employee’s workers compensation statement noting that the employee had not indicated when that statement might be forthcoming.

The FWC therefore dismissed the claim and upheld the dismissal. 

Lessons for employers

This decision is a helpful example of how to appropriately manage disciplinary processes notwithstanding an employee’s reluctance or refusal to co-operate. In this decision, the employee was given every opportunity to provide a response to the employer’s legitimate concerns, or an explanation for his conduct, including the opportunity to provide a response in writing, but chose not to.

Employees should always be given a legitimate opportunity to respond to allegations of misconduct, particularly in matters that are serious in nature. However, the FWC has shown support for employers who proceed with disciplinary action in the absence of a complete response from the employee where it is clear that the employee does not intend to co-operate.

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