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Welcome to the October edition of our Corporate and Commercial Briefly.

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>   Employment – The pitfalls of neglecting procedural fairness in summary dismissals

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Employment – The pitfalls of neglecting procedural fairness in summary dismissals

The recent Fair Work Commission cases of B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 and McAdie v Vanderfield Pty Ltd [2013] FWC 7888 demonstrate the caution to be adhered to in relation to procedural fairness and natural justice when dealing with summary dismissals, no matter how straightforward a matter seems. While both decided in the Federal jurisdiction, the lessons of these cases are equally applicable in the State jurisdiction. 

B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191

The facts

B, C and D (Employees) were employed by Australian Postal Corporation (Employer). Software filters detected the distribution of pornography by the Employees. This was in clear breach of the Employer’s IT Policy (the Policy); the Employees were summarily dismissed.

The proceedings

The Employees challenged the decision, claiming the termination was ‘harsh, unjust or unreasonable’ and hence they had been unfairly dismissed.

The Full Bench of the Fair Work Commission (the Commission) found the Employees’ dismissals were harsh, with the majority observing:

  • the Employer failed to draw Employees’ attention to the Policy and stress the importance of it;
  • a culture of tolerance existed in the Employer's workplace for breaches of this Policy;
  • no prior warning was given to acknowledge that breaches of the Policy were to be treated as serious enough to warrant dismissal; and
  • the long periods of satisfactory service (in excess of 10 years each) and the potential for hardship of the Employees and their families should have been taken into account.

The Commission acknowledged the right of employers to have policies regarding pornography and other matters which can warrant dismissal. However, the Commission also noted that it is the duty of the employer to take reasonable steps to inform employees of any policy and the consequences of a breach. Orders were made for the reinstatement of the Employees with continuity of employment.

Distinction from Queensland Rail

An interesting counterpart to the above case is the decision in Queensland Rail v Wake (2006) 156 IR 393. In that case, an employee was dismissed for accessing and storing pornography on their workplace computer. The employee was not reinstated on appeal, even though the breach was not serious and the employee had been employed for a substantial period. This decision was reached because the employer made ‘sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy’. The sustained efforts included reminders on payslips, educational videos, multiple agreements and legal notices every time an employee logged in and an amnesty period. These were active and sustained steps to address the problem over an extended period of time. While these steps are not a foolproof basis for dismissal, they are a good guideline. 

McAdie v Vanderfield Pty Ltd [2013] FWC 7888

The facts

Mr McAdie (Employee) had worked for Vanderfield Pty Ltd (Employer) for a period of 15 months as a service advisor. During this time he developed difficulties with his interpersonal communication skills, leading to a number of recorded incidents involving customer dissatisfaction and culminating in an incident leading directly to the Employee’s dismissal. That incident comprised alleged misconduct, described by the Employer as ‘repeated unsuitable communications with customers and similar unsuitable communications with other staff members’.

It was suggested the Employee take the remainder of the day off. After initially leaving the premises the Employee returned launching a ‘loud and aggressive complaint directed forcefully’ at the regional manager. After this incident the Employee was summarily dismissed.

The proceedings

The issues raised centred on whether the dismissal was ‘harsh, unjust or unreasonable’. The Commissioner found significant deficiencies existed in the process, namely failure to provide the Employee the opportunity to respond along with the failure to allow the Employee to have a support person in attendance during the dismissal meeting. While these deficiencies existed, it was found the dismissal was not harsh, unjust or unreasonable. Nevertheless, the Commission emphasised the need for procedural fairness even in apparently obvious cases. This includes the importance of an opportunity to respond, even where no satisfactory explanation seems plausible.

Message for employers

The decisions outlined above have considerable impact on employers when considering summary dismissal.

The decision in B, C and D v Australian Postal Corporation highlights the importance of communicating policies. If a policy is not effectively communicated to employees, a tribunal might consider that employees in breach of the policy are unaware of their wrongdoing. Educate, caution and monitor employees on their behaviour and if an employee’s behaviour is still an issue, only then consider dismissal.

McAdie v Vanderfield highlights the importance of following procedural fairness to eliminate any claim of ‘harsh, unjust or unreasonable’ dismissal. Even in cases of unambiguous serious misconduct involving behaviour of the employee, best practice would be to ensure that procedural fairness is complied with when summarily dismissing an individual.

For more specific information on any of the material contained in this article please contact Lincoln Smith on 08 8210 1203 or lsmith@normans.com.au.


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