Flawed disciplinary process leaves door open for employee’s reinstatement

A recent Fair Work Commission (Commission) decision has highlighted the importance of following a procedurally fair process when terminating an employee’s employment for misconduct, the failure of which can result in an employee’s reinstatement.

The case

In Susan Edwards v Litchfield Council [2019] FWC 6660 the Commission ordered reinstatement after an employee was dismissed from her role as gatekeeper at a waste transfer station following allegations of theft, fraud and corruption.

The employer commenced an investigation into Ms Edwards’ conduct after receiving a complaint by a co-worker that a customer’s waste was not properly deposited and was potentially unpaid for during Ms Edwards’ shift.

Rather than seeking a response from Ms Edwards to the allegations, the employer reviewed CCTV footage and prepared a report in relation to her conduct, which included that Ms Edwards’ son regularly visited her at the waste station.

The employer issued Ms Edwards with a first and final warning, which stated that any further instances of unacceptable behaviour could lead to her dismissal.

Ms Edwards was subsequently dismissed following further allegations of making illegal transactions at work, including failing to take payments from customers and recording transaction, amounting to potential theft, fraud and corruption.

Erroneous allegations and a series of procedural flaws

The Commission held that the employer’s targeted action to capture information relevant to other breaches was significant and procedurally unfair.

Notably, Ms Edwards was not offered a support person during the meeting where she was issued the first and final warning, nor was she shown the CCTV footage or provided with a log of transactions.

Before the Commission, Ms Edwards was able to provide a series of reasonable explanations in response to the allegations against her.

No valid reason for dismissal

The Commission found Ms Edwards had some discretion in her role with respect to the application of fees and charges depending on the nature of the load, and whether it involved residents or non-residents. This, coupled with a lack of documented guidelines establishing codes of conduct, led the Commission to find there was no valid reason for dismissal.

Key takeaways

Ordering reinstatement of the employee, the Commission noted that issuing a first and final warning was surprising and was not supported by the evidence.

The decision highlights that employers need to consider form and substance before moving to dismiss an employee. An employer’s decision to dismiss an employee for misconduct should be based on substantiated allegations which are supported by evidence. The process which leads to the dismissal is equally important – employees must be provided with sufficient particulars of the allegations, and provided with a reasonable opportunity to respond.

How we can help

Moores assists employers with navigating disciplinary matters and responding to misconduct, including dismissal. For assistance with workplace relations matters, please do not hesitate to contact us.