An employee had worked at a mushroom farm for almost 15 years as a picker. Each mushroom picker was assigned a knife and blade which they used to harvest. At the end of each shift, pickers were required to return their tools to allocated pegs, which a supervisor would check to ensure all knives and blades are accounted for. 

On 16 August 2020, the employee completed a shift and the supervisor failed to check all tools were accounted for. 

A short time after the employee had left, the supervisor noticed the employee’s knife was missing. The supervisor telephoned the employee via video call to ask the employee to assist the manager in locating the knife. They were unsuccessful in locating the knife. 

The employee did not work the following day. With the knife still missing, it potentially represented a contamination risk. As a result, the business checked all products prepared by the employee to ensure the knife was not in a product box.  

On 18 August 2021, the employee attended work and found the knife which had been incorrectly placed. That afternoon the employee was called into a meeting - without the opportunity to bring a support person - where the employee was advised they were be stood down as the business investigated the incident.  

A further meeting was scheduled two days later. The employee attended the meeting and was handed a letter advising they were being terminated for serious misconduct on the basis they had caused serious and imminent risk to health, safety and reputation or profitability of the business. 

The employee later filed an unfair dismissal claim in the Fair Work Commission (“Commission”). 

The decision 

The Commission identified various issues within the termination process such as:  

• not offering an opportunity to have a support person present, 
• not providing the employee with an opportunity to respond, 

• And having a closed mind to any information the employee may have offered by reference to the pre-prepared termination letter. 

The Commission considered the misplacement of the knife was an accident rather than a deliberate act. 

The Commission also considered the supervisor failed to follow the end-of-shift procedure. Given the act was accidental and did not result in actual or a risk of harm to a person or the business, the Commission determined there was no valid reason for misconduct let alone serious misconduct.  

The inadequate process and invalid reason unsurprisingly lead to a finding that the dismissal was harsh, unjust, and unreasonable.  

Given the employee’s unblemished work record and the circumstances of the case, the Commission ordered the business to pay nearly $20,000, being equal to six months wages - the maximum compensation available.  

Learning for business 

This case is a reminder to businesses to ensure they not only have a valid reason for dismissal, but to adopt fair, robust processes before deciding to dismiss an employee. 

The case also demonstrates, if the circumstances justify it, the Commission will award employees up to six months’ pay by way of compensation.  

The decision in this case also highlights the employee was remunerated at a rate below the minimum rate contained in the relevant award. This will no doubt lead to further underpayment claims which may result in the business and individuals being required to pay substantial penalties.  

How we can help 

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand how to manage complaint, disciplinary and termination processes. 

In addition, our Workplace Relations Consultants have a wealth of experience in relation to compliance issues including ensuring employee are receiving their minimum entitlements, as well as conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.   

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 

[2021] FWC 1332