Today I am publishing a post which is an extract from the Fair Work Commission’s quarterly practitioner review which summarizes a case where although there was an absence of procedural fairness in the approach taken by the employer to a dismissal of an employee for alleged misconduct, the Commission nonetheless decided that the dismissal was not relevantly unfair.
“The applicant who lodged this unfair dismissal application was employed as a Theatre Technician. He was dismissed for yelling at and harassing a colleague, and for not following instructions from a surgeon which caused theatre to be delayed by one hour. The respondent also relied on a third reason for the dismissal at the hearing, which was that the applicant was dishonest. The applicant had travelled overseas while on personal leave with a medical certificate. The applicant also had a history of poor performance and conduct. The respondent had issued three warnings to the applicant and counselled him on his conduct on 15 occasions in two years.
The applicant was notified of the first two reasons for dismissal before the termination took effect, however he was not notified of the third reason (dishonesty) until the hearing. A fourth reason (relating to his conduct and work performance) was notified in the letter of dismissal after termination. The applicant was not given an opportunity to respond to the dishonesty reasons prior to the dismissal.
The Commission found that the applicant’s conduct towards his colleague and his failure to follow the surgeon’s instructions, together with his dishonesty amounted to serious and unacceptable behaviour. The Commission found that the formal warnings concerned the applicant’s unacceptable conduct. The Commission found that there was a valid reason for dismissal even with the procedural defects of the applicant not having been notified of all of the reasons for his dismissal. The Commission took into account the applicant’s disciplinary history and found that the dismissal was not unfair. The application was dismissed.”
Suzara v St Vincent’s Private Hospitals Ltd t/a St Vincent’s Private Hospital Melbourne (2019) FWC 87