The facts

A mining worker had been employed for nine years and had an exemplary employment record. On 22 September 2020, the employee was involved in an incident that breached a safety rule. Following the incident, the employee was required to provide a statement outlining his version of the events and attend a meeting with the Human Resources Manager and another staff member to discuss the incident.

The following day, the employee was issued with a show cause letter. The letter informed the employee he had until 5pm on 24 September (the next day) to meet and respond explaining why his employment should not be terminated.

The employee contacted his union representative, who asked for a two-day extension to enable the employee to respond to the letter. The union representative also requested the meeting be delayed 24 hours so they could attend. The Business permitted the employee with one additional day to prepare his response to the letter but denied the request to reschedule the meeting.

The employee was then terminated without notice via email on 28 September 2020.

The decision

The Fair Work Commission (the “Commission”) found the employee breached the safety rules and that the severity of the breach amounted to serious misconduct. Consequently, the Commission was satisfied there was a valid reason in dismissing the employee.

However, the Commission concluded the investigation and disciplinary process was flawed, by sending the show cause letter before the investigation was complete.

The Commission considered the employee should have been given time to respond to the allegations before any decisions were made regarding the incident. Failing to do so resulted in the employee being denied an opportunity to respond.

Furthermore, the Commission considered the refusal to reschedule the disciplinary meeting by 24 hours in order to allow the union representative to attend amounted to an unreasonable refusal of a support person.

The Commission concluded the “Human resources disciplinary process was inadequate... and wasn’t in accordance with its own policy. For the reasons stated above, [the Commission found] that, despite the [Business] having a valid reason to terminate the [employee], the [employee’s] termination was harsh, unjust, and unreasonable.”

Learnings for businesses

This case highlights the importance of following a fair and consistent procedure when conducting investigations and disciplinary processes.

Additionally, prior to making decisions about disciplinary outcomes, businesses need to provide employees with a chance to respond. It is crucial for businesses to be aware of the relevant legislation and consider their own company policies when going through these processes.

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 conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.

Received a general protections or unfair dismissal claim? Our Workplace Relations Consultants are on hand to help to explain the processes, draft responses and submissions, and represent you in the Fair Work Commission.

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

[2021] FWC 838