I came across a Full Bench decision recently, which dismissed an appeal brought by a former employee against the dismissal of his unfair dismissal application and which contains a very weird proposition.
Here is the extract from the Full Bench decision which I find very curious.
“A number of matters concerning the Decision, and the grounds of Mr Morgan’s appeal against the Decision, must be noted from the outset. First, the Commissioner’s determination of Mr Morgan’s application was entirely orthodox: he made findings of fact on the basis of the evidence before him, considered all the matters required to be taken into account by s 387, and applied standard legal principles in reaching his conclusion that the dismissal was not unfair. Second, the Decision was made on the basis of the particular facts of Mr Morgan’s case, which did not raise any issue that was novel or had any wider implications. Third, Mr Morgan’s appeal does not seek to challenge the critical findings in the Decision – in particular, that Mr Morgan had, with one exception, engaged in the conduct on 29 January 2018 that was alleged against him; that he did not demonstrate any contrition for or insight into his conduct; and that his refusal to accept any wrongdoing on his part or to acknowledge the requirement to comply with Serco’s policies and procedures precluded Serco from applying any disciplinary sanction short of dismissal (my emphasis)….These are all matters which strongly militate against the grant of permission to appeal.”
Now the passage I have highlighted is either interesting or concerning, depending I suppose upon one’s curiosity. Is the Full Bench asserting that either a refusal by an employee challenging the fairness of a dismissal in an unfair dismissal case to accept an allegation of wrongdoing or to “acknowledge” his or her obligation to comply with an employer’s policies and procedures “precludes” the employee from challenging the severity of the penalty of dismissal?
That is certainly it reads, and I cannot discover any other passage from the decision which casts any different light upon it. You be the judge.
Here is what the Commissioner at first instance said about it
“Mr Morgan is 55 years old and at the time of his dismissal had been employed for over seven years.
Mr Morgan made a number of submissions to the effect that he has suffered differential treatment compared to others. There is however not sufficient evidence regarding all the facts and circumstances of other examples for the Commission to properly draw any conclusion regarding these other examples.
Whilst Mr Morgan admits that some of his actions were contrary to the policies and procedures of Serco he does not accept that there was a valid reason for his dismissal. Mr Morgan acknowledges Serco’s concerns and that the complaints against him are serious but continues to deny all the allegations made against him.
Mr Morgan has shown no contrition and little insight into his actions.
Mr Morgan’s refusal to accept the wrong doing on his part or acknowledge the requirements on him to comply with the policies and procedure excluded consideration by Serco of alternative disciplinary action short of dismissal.”
Earlier in his reasons for decision Commissioner Williams said
“Mr Morgan also submits that termination of his employment was disproportionate to the conduct and not consistent with more lenient discipline Serco had applied to other DSO’s previously.
The Respondent submits that the evidence supports the conclusion that Mr Morgan was required to be familiar with and comply with the Respondents Policy and Procedure Manual on International Removals and the evidence demonstrates he was well aware of the contents of these policies and procedures.
Serco submits that where an employee fails to observe the requirements of its policy and procedures any termination that followed such breach would involve a valid reason for the dismissal.”
All of this begs the question. Is it a principle of fair work law that a refusal by an employee to accept that he or she has breached an employer’s policies sufficient to justify an employer declining to consider a penalty for the breach other than dismissal?
With respect to all concerned, I think not.
Morgan v Serco Australia Pty Limited T/A Serco Immigration Services (2018) FWCFB 7011 delivered 26 November 2018 per Hatcher VP, Binet DP and McKenna C