The importance of warnings in unfair dismissal cases

Despite there being a valid reason for a dismissal, the Fair Work Commission may still regard a dismissal as relevantly unfair (and justifying of a remedy) if there is an absence of procedural fairness or warnings in the case of misconduct.

“Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[66] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.29

[67] I have found that the Applicant engaged in misconduct by performing personal work during business hours in circumstances where other employees were waiting on him to perform his normal duties. As I have earlier stated, this finding weighs in favour of a finding that the dismissal was not unfair. Balanced against that finding are the significant procedural failures of the Respondent in effecting the dismissal.

[68] The unauthorised performance of personal work by the Applicant during business hours on 28 January 2022 is a serious matter. I note however that there was no evidence of formal warnings issued to the Applicant for similar conduct prior to the dismissal. In these circumstances, the absence of procedural fairness denied the Applicant an opportunity to provide a proper response to the allegations or put forward arguments for a different or lesser penalty. The procedural failures in the circumstances of this case are sufficiently serious as to outweigh the valid reason for the dismissal. All other factors are neutral considerations.

[69] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal was unjust and thereby unfair.”

Passage from

Brett v HB Engineering (Tas) Pty. Ltd. (2022) FWC 1695 delivered 7 July 2022 per Masson DP