An employer which delays taking disciplinary action against an employee runs the risk of not being able to rely upon the employee’s conduct in an unfair dismissal case, in what is known as “condonation”.
“[61] Mr Wang submits that there was a lack of procedural fairness and contended that some 9 days elapsed before the incorrect count of 30 September 2024 was brought to his attention.110 This is applicable to the concept of condonation which embraces the notion that an employer might waiver their right to claim that conduct amounts to serious misconduct by electing not to act immediately when they become aware that such conduct may have occurred. The principles applicable to this issue are set out in Cannan & Fuller v Nyrstar Hobart Pty Ltd.111 Springtime submit that they took 9 days because they were thoroughly investigating the concerns before raising them with Mr Wang. It is well established that in circumstances where it believes an employee has engaged in conduct so serious it would warrant termination if proven, they should have stood the employee down (ordinarily on full pay), while that investigation is underway. This is a flaw in the termination process.”
Wang v Springtime Poultry Pty Ltd [2025] FWC 798 24 March 2025 per Dobson DP