Unfair dismissal and confidential reports

It is not uncommon for an employer to decide to dismiss an employee on the basis of findings which may have been made in a confidential report. However the dilemma for an employer in this situation is whether or not to provide access to the report to the employee who is entitled to procedural fairness. In the following passage from a Fair Work Commission unfair dismissal appeal that dilemma is clear.

“Public interest

As set out in his notice of appeal, the Appellant contends that the Decision is inconsistent with or otherwise in conflict with the decision in Remmert. In Remmert, the applicant, Mr Remmert, was dismissed for making Facebook posts that were considered to be bullying conduct directed at another employee. The employer formed an investigation panel to investigate Mr Remmert’s conduct. The investigation panel produced a HR Summary for senior management of the employer which, inter alia, made a recommendation that Mr Remmert be dismissed. Critically, the HR Summary made reference to a confidential report that concerned the conduct of Mr Remmert. This confidential report was never provided to Mr Remmert. Commissioner Hampton found that there was a valid reason for dismissal, being Mr Remmert’s Facebook posts. However, Commissioner Hampton concluded that the dismissal was harsh and unreasonable because Mr Remmert was denied procedural fairness. Commissioner Hampton found that the confidential report was very relevant to the investigation panel’s recommendation that Mr Remmert be dismissed and that it was probable that the report, along with other matters, contributed to the view in the HR Summary that Mr Remmert be dismissed. The procedural unfairness in this case arose because Mr Remmert was not provided with the contents of that report and given an opportunity to respond to the findings made about his conduct contained therein.

There is no inconsistency between the Decision under appeal in this case and Remmert. Both cases turned on their own facts. As outlined above, the Deputy President found that the Appellant was made aware of, and given the opportunity to respond to, the conduct which was of concern to the Respondent. There was no information that was withheld from the Appellant as there was in Remmert.

We are not satisfied that there are any sustainable public interest grounds upon which permission to appeal should be granted. We do not consider that the Decision raises any issue of important or general application that would enliven the public interest. There is no diversity of decision at first instance in relation to the issues raised on appeal so that guidance from an appellate body is required. We do not consider that the result of the Decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other decisions dealing with similar matters.”

Waddy v Ability Centre Australasia Ltd  (2021) FWCFB 5215 delivered 23 August 2021 per Catanzariti VP, Hamilton DP, Bissett C and Matheson C