Businesses are required to ensure procedural fairness is applied at all times, even if it’s believed the conduct of the employee is serious enough to warrant summary dismissal, as evidenced by a recent Fair Work Commission decision in Stephen Hanson v Precept Services Pty Ltd [2017] FWC 1488. The case also serves as a timely reminder to ensure that the decision to terminate is proportionate to the alleged misconduct.

In this matter, the Applicant had been terminated on the grounds of serious misconduct largely resulting from a confrontation on 20 July between the Applicant (who was an Operations Manager) and the National HR/WHS Manager (who is also the wife of the Managing Director) Ms Lisa Lowcock.

The confrontation between the two resulted in the Applicant being terminated “because of his misconduct in the meeting with Ms Lowcock, and his subsequent refusal to participate in the meeting arranged to discuss the written complaints received from her and Mr Marty Barlow.” The complaints alleged Mr Hanson had behaved in an intimidating and aggressive way towards Ms Lowcock in the discussion in her office on 20 July 2016, which included the use of offensive language.

The Respondent also contended that following an investigation it had asked the Applicant to attend a disciplinary meeting resulting from the complaints that had arisen whereby the Applicant refused to participate.

As a result, the Respondent then decided to terminate his employment based on his behaviour in the discussions with Ms Lowcock and his refusal to participate in the meeting. A termination letter was then prepared and given to him. In its submission, Mr Hanson’s behaviour in confronting an employee, and his subsequent refusal to participate in the meeting, constituted serious misconduct and justified its decision to summarily dismiss him.

In providing context and background to the incident the Applicant explained that his son was employed as an apprentice electrician within the business, a meeting was held between Ms Lowcock and the Applicant’s son concerning “his failure to satisfy the academic requirements associated with his apprenticeship. Mr Hanson was not involved in the meeting as his responsibilities did not extend to apprenticeship issues.”

The confrontation was then brought about because the Applicant questioned Ms Lowcock why he was not present during the discussion involving his son.

Following the outburst from Mr Hanson, a colleague who was in an adjoining office then contacted Mr Lowcock to make a complaint before Ms Lowcock telephoned her husband to discuss the incident. She made a formal complaint shortly thereafter before scheduling a meeting where the Applicant and Mr Lowcock could discuss the number of issues that had recently arisen.

During this scheduled meeting the Respondent claimed that the Applicant made a handful of remarks and then left the meeting straight away. The Applicant then was absent from the workplace for several weeks due to annual leave and sick leave.

Mr Lowcock admitted in evidence that the investigation did not feature an interview with the Applicant nor did it contain a written report. He also admitted that the Applicant was not given any notice as to what the meeting on 07 September was regarding and that a termination letter had been prepared should that be the result of the meeting.

Importantly, Commissioner Gregory referred to these personal circumstances of the Applicant as an explanation for the basis of his behaviour, stating that it “does not necessarily excuse his behaviour, but it does provide an explanation about why he behaved as he did.”

The Commissioner then drew attention to the fact that if the Company was using this altercation as the basis for the summary termination and waited seven weeks before raising the issue and that “the lack of urgency in responding is hard to understand in the context of the behaviour that was ultimately deemed significant enough to warrant summary dismissal.”

The Commissioner also concluded that “the use of robust language in the workplace is not unusual or uncommon, and that it was accepted or tolerated to a large extent”. He also noted that because of this usual tolerance it seemed that the Applicant was being judged to a different standard to others. The Commissioner found the decision to dismiss was not supported by a valid reason and was “satisfied instead that some lesser response was more appropriate.”

Overall the actions of the Employer were deemed to be ‘at least harsh and unreasonable’ as per s.387 of the FW Act and the Applicant was awarded compensation the amount of $27,787.65.

Key points to take away from this matter:

• The question that every employer needs to ask itself prior to engaging in any of the Commission’s unfair dismissal processes is to ask itself about the possibility of reaching a settlement prior to Arbitration. This can be done at the Conciliation process or at the private behest of the parties without Commission involvement.
• Settlement need not be seen as an admission of guilt but as a practical resolution that ensures closure of the matter and reduces a company’s potential further liability.
• This is a particularly relevant consideration for organisations that have not followed correct process, quite often matters that are found in the favour of an Applicant will be as a result of mistakes made in not affording an employee procedural fairness.
• For matters involving summary dismissal due to serious misconduct, the employee must always be given a complete opportunity to respond to the allegations and have the particulars of any allegations put to them for response.
• Although the Commissioner found that the Applicant’s behaviour was ‘inappropriate and unacceptable’, he concluded that such behaviour didn’t constitute a valid reason to terminate the Applicant’s employment. As such, caution should always be taken when considering whether the degree of misconduct is sufficient to warrant the decision to terminate.

Our Workplace Relations team specialises in providing advice in this area and can assist you in ensuring you have effective procedures in place in your business. Contact Workplace Relations to find out more.