Today I am publishing a post which is essentially a copy and paste of an extract from a very recent Fair Work Commission decision in a rare case where the Commission decided that whilst there was a valid reason for the dismissal, the procedural defects in the manner in which it was undertaken by the employer were sufficiently serious to turn it into an unfair dismissal warranting an award of compensation.
The applicant was provided with an opportunity to respond to the reasons which the employer relied upon as basis for his dismissal. The applicant acknowledged that during the meeting on 11 October 2017, he was given an opportunity to speak in mitigation and he read from a pre-prepared mitigation statement.
“However, there was a very regrettable absence of any notification to the applicant of the circumstances particularised in complaints A and B prior to his interview with Mr K on 19 September 2017. The applicant had justifiable basis for grievance when he was summonsed to attend an investigation interview, the seriousness of which was reflected by it being recorded by Mr K, and for which a support person was organised, yet the applicant had not been given any prior indication of the events particularised in complaints A and B. The applicant was entitled to consider that this part of the process which ultimately culminated in his dismissal had all the characteristics of an ambush.
“Consequently, the dismissal of the applicant involved some very regrettable procedural deficiencies such that the applicant was initially interviewed in circumstances which on any reasonable and objective consideration were entirely unreasonable and unjust. A fair and just procedure would have allowed the applicant an opportunity to provide any initial response to the complaint A and B events having had the benefit of some prior notification of the issues under investigation.
Conclusion
The applicant was dismissed upon findings that the employer made of serious misconduct. Upon proper analysis of the conduct of the applicant on 12 and 18 September 2017, during incidents which have been referred to as the complaint A and B events, there was, in the context of the particular employment circumstances, proper basis for the employer to have established serious misconduct. As the employer operates in the CIT Industry it is obliged to apply stringent standards of employee conduct in respect to any security and safety protocol breaches. Consequently, the reasons for the applicant’s dismissal were sound, defensible and well-founded. The applicant was dismissed for valid reason related to his capacity or conduct.
The procedure that the employer adopted in dealing with its investigation into the complaint A and B events involved important deficiencies, including that the applicant was not initially advised of the particulars of complaints A and B before he was subjected to a recorded investigation interview. Further, the employer selected the support person to assist the applicant during discussions relating to dismissal, and this had the practical consequence of refusing to allow the applicant to have a support person of his choice. In addition, the unpaid suspension of the applicant during the employer’s investigation was contrary to the employer’s obligations imposed by the terms of the EA.
In summary, this case has involved a dismissal for serious misconduct which, in the particular employment circumstances, has represented valid reason for the applicant’s dismissal. Regrettably, the procedure that the employer adopted during its investigation into the events which ultimately established the serious misconduct was infected with serious deficiencies. The determination of the matter has involved a careful assessment and balance of all of the relevant factors, and, despite the existence of valid reason for dismissal, and by fine margin only, the important procedural deficiencies have rendered the dismissal to have been unreasonable.
Consequently, although the dismissal was for valid reason, it involved significant and important procedural deficiencies. The dismissal of the applicant was unreasonable and therefore unfair. The applicant is a person protected from unfair dismissal, and he is entitled to have the Commission provide an appropriate remedy for his unfair dismissal.”
Jarmain v Linfox Armaguard Pty Ltd (2018) FWC 3255 delivered 14 June 2018 per Cambridge C