Unfair dismissal; the critical importance of procedure

The importance of procedural fairness is at the heart of the extract forma recent decision of the Fair Work Commission in an unfair dismissal case. An employee of the City of Stirling, a large Western Australian local government, which has been challenged in several unfair dismissal cases times in the Commission in recent years, was dismissed for serious misconduct on the basis that the City concluded that he had made unauthorised modifications to the air conditioning of a vehicle which ultimately the Commission accepted had damaged the vehicle.

Commissioner Bissett held that the City had a valid reason to dismiss the applicant but that the resulting dismissal was relevantly unfair because the City’s procedure was inadequate.

Here is an extract from the decision about this issue.

“In Byrne and Another v Australian Airlines Limited  122 the High Court said:

…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

On balance I have decided that the dismissal was unreasonable.

I have reached this conclusion because of the substantial deficiencies in the investigation process carried out by the City into the allegations and the failure of Mr Snook to step aside from the investigation once it became clear Mr Emery claimed he had approved the modifications to the BIVs. I am not satisfied that the procedure adopted by the City in investigating the conduct was sound, rigorous and without fault. Further, I am satisfied that these deficiencies had a substantive effect on the capacity of Mr Emery to respond to the reasons for his dismissal such that he might have some influence on the decision

While it is true that procedural defects will not necessarily render a dismissal unfair, in this case I am satisfied that the lack of an appropriate investigation and the involvement of Mr Snook in the investigation means little confidence can be had in the investigation process (as it was). This casts substantial doubt over the outcome of that process.

In such circumstances and where I have a real concern at the extent of the investigation undertaken and the apparent conflict of interest in Mr Snook’s involvement, I am not convinced that the outcome would not have been different had a thorough and proper investigation been undertaken, had Mr Emery been provided with the detail relevant to the consideration of the City, and if Mr Snook had stepped down and was replaced by another manager as investigator.

I have balanced these findings against the finding that there was a valid reason for dismissal but find that the procedural issues outweigh the finding of a valid reason in circumstances where the damage to BIV U481 was in the order of $1,902.00, the damage to BIV U483 was not attributed to the bridging wire and where the evidence does not suggest that Mr Emery had any intent to damage the vehicles (which does not excuse his conduct).

In these circumstances I am satisfied that Mr Emery’s dismissal was unreasonable.

For these reasons I am satisfied that Mr Emery was unfairly dismissed.”

Emery v City of Stirling (2018) FWC 6853 delivered 3 December 2018 per Bissett C