Summary

The employee was dismissed following a number of abusive and threatening incidents over 6 months, which culminated in him ‘swearing and abusing’ the Workshop Supervisor on 6 February. The applicant requested a meeting to discuss the incident where he accused the Supervisor of bullying another employee. The owner and Manager agreed to the meeting and after discussion with the Supervisor and co-owner decided to dismiss the employee for misconduct over the preceding months.

After meeting with the employee and giving him the opportunity to ‘voice his allegations’, the Manager informed the employee they were instantly dismissed for the ‘abusive and threatening way he spoke to others…the preceding day and previously’. After the meeting the Manager gave the employee the option to be dismissed or to resign. The applicant chose to resign and signed a resignation letter provided by the business.

The applicant claimed he was unfairly dismissed as the time frame between the dismissal and the forced resignation was immediate and provided insufficient time for independent advice or an opportunity to respond. The Commission found there had been a forced resignation, and as such a dismissal within the meaning of the Fair Work Act. This then required the Commission to determine whether the dismissal was unfair.

Decision

The Commission found there was a valid reason for dismissal when taking into consideration all relevant factors. The employee had been provided with an opportunity to explain ‘prior incidents of misconduct’ and the conduct that ‘triggered his dismissal’ despite the decision to dismiss being made prior to the meeting. Whilst there were ‘procedural failings on the day of dismissal’, they did not in an ‘overall sense deny [the employee] a fair go’.

The Commission held that ‘given the seriousness of the overall conduct manifest in [the employees] pattern of insubordinate behaviour’, the ‘procedural failings’ were not of ‘sufficient weight to render this particular dismissal harsh, unjust or unreasonable’. As such, his application for unfair dismissal was unsuccessful.

Lessons for employers

Clear workplace policies and procedures and a proactive approach to managing instances of misconduct helps to protect a business from a successful unfair dismissal claim. In this case, the Commission highlighted a fairer process would have seen the employee be advised they were at ‘imminent risk of being sacked [in the meeting] and be provided time to consider whether he wanted a support person present’, however as the business had addressed previous instances of insubordination and the employee was on notice that he could be sacked, the overall process was not unfair.

How we can assist

Under current employment legislation, costly consequences await organisations found to be managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Swendy Hoang – Graduate Workplace Relations Advice Line Advisor

Jarrod Grundy v Brister and Co [2019] FWC 3242 (14 May 2019)