Dismissal unfair despite a valid reason: the importance of procedural fairness

In Stephen Burley v Cleanaway Operations Pty Ltd [2022] FWC 3055, a waste collection driver who was dismissed for using his mobile phone while driving was reinstated due to significant procedural fairness errors by the employer in the investigation process. This case provides useful guidance from the Fair Work Commission (FWC) on when a dismissal for a valid reason can nevertheless be deemed unfair.

Facts

The Applicant, Mr Stephen Burley, had been employed by Cleanaway for approximately a year. However, Cleanaway recognised his period of service with other waste collection contractors totalling almost 25 years. As part of his role, Mr Burley drove heavy vehicles. Mr Burley also served as a delegate for the Transport Workers Union who represented him at the hearing.

On 4 April 2022, Mr Burley’s 99-year-old mother was taken to hospital where she was assessed and then returned to her residential aged care facility. The following day while operating a heavy vehicle, Mr Burley took a call from his mother’s aged care facility. He answered the phone, placed it on loudspeaker and placed the phone in his shirt pocket. Mr Burley continued driving the vehicle for around 40 seconds before he stopped the vehicle and completed the call. Following this call, he resumed driving but several seconds later, his sister rang. He had a short conversation with her while holding the telephone in his hand and operating the heavy vehicle. Mr Burley had been observed on the phone while driving by a worker in another truck, who reported him to the Regional Manager. The CCTV recording from the truck was obtained to confirm the report.

Mr Burley was suspended and required to attend a meeting with a human resources (HR) officer who was tasked with preparing an investigation report. At that meeting, Mr Burley accepted he had breached Cleanaway safety rules and road traffic laws by operating his mobile phone whilst driving the truck. He was asked what he believed the outcome of the investigation should be, and he responded that he should receive a first and final written warning, which he claimed was the same disciplinary action another employee had received for breaching the same rule.

Following the meeting, the HR officer prepared a report which was forwarded between various levels of management before the Executive General Manager provided the report to the Chief People Officer (CPO) for approval to terminate Mr Burley’s employment. The CPO approved the decision to dismiss Mr Burley.

Cleanaway then issued a show cause letter to Mr Burley. Mr Burley’s response (in which he indicated remorse, explained his personal circumstances and stated that he would not operate his phone while driving again) was issued to the Regional Manager and the General Manager. Those managers arranged an outcome meeting with Mr Burley where he was informed that his employment was terminated on the basis of serious misconduct.

Mr Burley made an unfair dismissal application in the FWC, in which he admitted that using his mobile phone while operating a truck was a valid reason for dismissal. He submitted that the dismissal was nevertheless unfair because:

• he had not been provided with a genuine opportunity to respond, as the decision to terminate his employment was made by the CPO before the show cause letter had been issued and without her reviewing his response to that letter; and
• it was a disproportionate punishment, given Mr Burley’s unblemished record over 25 years and the punishments issued to other staff who had demonstrated the same or similar misconduct but had not been dismissed.

Decision

The FWC noted that the fact that there was a valid reason to dismiss provides ‘strong support for the [FWC] to uphold the employer’s decision to dismiss.’ However, that valid reason must be carefully balanced against the other factors in determining whether a dismissal is fair.

The FWC described Mr Burley’s opportunity to respond to the reason for his dismissal as ‘essentially farcical.’ While Mr Burley was issued a show cause letter, the ultimate decision maker, the CPO, was never provided with a copy of his response. The managers had determined that the response did not need to be provided to the CPO as it did not contain any additional information. Further, the decision to dismiss Mr Burley was pre-determined by Cleanaway. The FWC formed the view that the investigation process was ‘both convoluted and perfunctory whereby it involved the participation of numerous individuals, most of whom had no face to face contact with [Mr Burley].’

The FWC held that Mr Burley’s response and commitment to not engaging in such conduct again was also relevant.

The FWC also took into account that:

• there had been no evaluation of the relative severity of Mr Burley’s conduct. The ultimate decision maker, the CPO, had only been provided with two still pictures and not actual CCTV footage;
• little regard was made for Mr Burley’s personal circumstances, such as the length of his service or his family responsibilities, as the CPO was not aware of those matters. It appeared that those matters had been ‘consciously excluded’ from the CPO’s consideration;
• the ‘overwhelming and enduring conclusion’ was that Cleanaway’s approach to dealing with Mr Burley was ‘manifestly different’ to that which it afforded other employees;
• it appeared that Cleanaway considered this a useful opportunity to dismiss an ‘enthusiastic’ union delegate.

Ultimately, while the FWC accepted there was a valid reason for Mr Burley’s dismissal, the ‘significant procedural errors’ in the manner that Cleanaway investigated, determined and implemented the dismissal were of such significance that he was denied natural justice. Accordingly, the FWC determined that the dismissal was unfair and Mr Burley was reinstated to his previous position.

Take Home Messages

This case emphasises the importance of procedural fairness in conducting workplace investigations and determining outcomes. Failure to follow the appropriate procedural steps could result in an unfair dismissal finding even where there is a valid reason for the dismissal.

Accordingly, employers must ensure they follow a procedurally fair process including carefully considering all responses received from the employee before determining whether to take disciplinary action. Further, there must also be consistency in disciplinary processes and in most cases, consistency in the level of disciplinary action taken against employees. Larger employers should also be aware that convoluted investigation processes involving many levels of management increase the likelihood of procedural errors.

Should you wish to discuss any matters raised in this article, please contact please contact Sathish Dasan on + 61 8 8210 1253 or sdasan@normans.com.au, Thomas Tagirara on + 61 8 8217 1337 or ttagirara@normans.com.au, or Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.