A recent Fair Work Commission (FWC) highlights the importance of procedural fairness in disciplinary matters.
A recent Fair Work Commission (FWC) highlights the importance of procedural fairness in disciplinary matters. In our blog articles I’ll be there for you: the role of a support person in the disciplinary process, It’s all about the process: what to consider in the disciplinary process, It’s all about the process: the importance of procedural fairness and If I can be serious for a moment – getting serious about serious misconduct we discussed strategies for employers to minimise the risk of an employee bringing a successful claim for unfair dismissal.
The Applicant was employed for a car dealership (the Employer) since 2005 as the Financial Controller. The Applicant was aware of the Employer’s policies and procedures and had agreed to abide by them. The Policy and Procedure Manual included a section on intranet, internet and email use.
An employee complained that the Applicant had been watching inappropriate (non work related) material on his computer, and that she felt vulnerable and disturbed by the incidents. The employee was afraid that senior management would not believe her without any evidence, so she went on the Applicant’s computer whilst he was at lunch and took photos of his internet history and reported this to management (initial complaint).
When senior management had become aware of the situation the IT department reviewed the Applicant’s usage. The review found that the Applicant had accessed the internet 33 times for inappropriate material.
When asked about the websites, the Applicant admitted that he had done so during work time and agreed that he would not do it again. The Applicant was issued with a first and final warning as well as having his internet access restricted. The Applicant was also advised that if there were further breaches and misuse of the Company’s internet, his employment would be terminated.
A few months later, the employee complained again (further complaint) about the Applicant’s usage, which resulted into another investigation by the IT Department. It was concluded that the Applicant was now looking at lifestyle-type sites with women with little clothing on because he could no longer access certain (more explicit) websites.”
On 27 July 2015, the Applicant was called into a meeting where he was told that he had breached the policies and procedures manual again and advised that his employment was terminated as a result of his “serious misconduct”.
Commissioner Williams confirmed that the Applicant was aware that any further internet misuse could result in his employment being terminated and that using the internet to access a swimsuit website could constitute a misuse of the internet under the Employer’s policy and was therefore a valid reason for terminating his employment.
However, whilst there was a valid reason for termination, Commissioner Williams held the Employer did not afford the Applicant procedural fairness, in particular:
- Management had already made the decision to terminate the Applicant’s employment before they had spoken to him about the reasons for the termination of his employment.
Employees must be given the opportunity to respond to the allegations prior to a decision being made to terminate their employment. Once an employer has heard the responses, the meeting should be adjourned to allow the employer to consider those responses. Once a decision has been made, the meeting can be resumed and the employee advised of the outcome.
- The Applicant was advised at the termination meeting that a further complaint had been made against him about contravening the internet policy and he was therefore being dismissed.
Employers are reminded that any investigation process is to be kept separate from the disciplinary process. In this case, the Applicant was not advised about the investigation or required to assist the investigation into the further complaint.
- The Applicant was not notified of the specific reason for his dismissal.
In this case the employee was simply told it was “serious misconduct” whereas employers should always be specific about the reason for the termination.
- The Applicant was not asked whether he had accessed the swimsuit website and was not asked whether he had an explanation for it.
This prompts the employee to respond to or provide an explanation for the situation.
- There was no practical opportunity for the Applicant to obtain a support person if he so wished for one to be present.
An employee should be invited to a disciplinary/termination meeting with a reasonable amount of time to arrange a support person if they so require.
- Despite being a large employer, there were no dedicated HR management specialists.
The Commissioner also noted that even though the employee who complained to the Employer about the Applicant’s computer access had accessed the Applicant’s computer without his knowledge, she was not disciplined for her actions.
Given the above, it was found that the Applicant’s dismissal was unfair and was awarded compensation in the amount of $25,341.13 gross for lost wages for four months.
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