Unfair dismissal; punishment must fit the crime

A manager for a courier company, which specializes in managing the delivery on acute dates of embargoed newly releases of best selling books, has won an unfair dismissal case and been awarded substantial compensation following his dismissal for misconduct based upon being partially responsible for the early delivery by one day of JK Rowling’s new book Fantastic Beasts and Where to Find Them to some retailers, said by the employer to have caused a serious and imminent risk to the reputation, viability or profitability of the its business.

Although the Fair Work Commission found that the employee had been guilty of misconduct for his role in the breach, it nonetheless held that the dismissal was relevantly unfair on the basis that dismissal was too harsh given the gravity of the employee’s role in the breach of procedure and his exemplary record as an employee.

The decision is a timely warning to employers about the need for the punishment to fit the crime. As Asbury DP observed

“On balance and after weighing the matters in s. 387 of the Act that I am required to consider, I find that Mr Biffin’s dismissal was unfair. In summary, for the reasons set out above, Mr Biffin’s dismissal was harsh because it was disproportionate to his misconduct in relation to the breach of the embargo. The dismissal was unjust because there was no proper basis for the Company to conclude that Mr Biffin was guilty of bullying drivers and unreasonable because the conclusion that he had engaged in such conduct was based on inferences that could not reasonably be drawn from the material that was before the employer.”

Steven Biffin v XL Express Pty Ltd T/A XL Express [2017] FWC 3702