Fair Work Commission reinforces 'one size does not fit all' when it comes to termination
A recent decision of the Fair Work Commission reinforces that employers must carefully consider all the circumstances surrounding a potential dismissal including adopting a fair process.
Background
The applicant had been engaged as a crane driver for the employer, Bechtel Construction (Australia) Pty Ltd (Bechtel) for about 2 years. The applicant had previously received a first and final warning for a matter unrelated to his dismissal.
On the day in question, some of Bechtel's employees, who were CFMEU members, attended a stop work meeting during the morning 10.00am 'smoko'. That meeting went over time and as a consequence, employees attending the meeting undertook unlawful industrial action.
The applicant did not attend the morning meeting.
At 1.00pm that afternoon, a further stop work meeting occurred. The applicant attended this meeting 'out of curiosity', however the evidence was unclear as to exactly what time the applicant attended the meeting, except that it had already commenced.
At the meeting, the applicant heard Bechtel tell employees that they would be 'docked' four hours pay for taking unlawful industrial action. There was no mention of disciplinary action or potential termination of employment.
The applicant did not return to work at 2.00pm, when the lunch break ended and he left the workplace about 3.00pm.
The next day, Bechtel met with the applicant and terminated his employment with the assistance of pre-prepared prompt sheets.
Further Bechtel provided him with a pre-prepared and pre-signed termination letter stating he was terminated due to undertaking unlawful industrial action and refusing to follow work instructions. The letter was in the same terms as another five employees terminated on the same day due to taking unlawful industrial action.
Finding
Commission Booth found that:
- while the applicant's participation in unlawful industrial action may have provided a legal basis for termination, it did not constitute a valid reason for the dismissal as there was no enquiry by Bechtel into the circumstances surrounding the applicant's participation in the unlawful industrial action;
- although the applicant participated in unlawful industrial action, he was not in the "same boat as everybody else" as he had not attended the morning meeting, he lacked prior knowledge of the purpose of the afternoon meeting and did not attend it until some time after its commencement. These were factual matters which Bechtel had failed to take into account in its decision making process;
- although Bechtel advised employees during the afternoon meeting that their pay would be docked, it did not advise them of other potential consequences such as dismissal;
- although Bechtel decision to dismiss the applicant due to unlawful industrial action reflected it's recent practice and position, it did not provide any evidence provided to support this contention - such as toolbox talks, notices or meetings to show a change of company policy; and
- Bechtel failed to consider the applicant's response to the allegations made against him and did not consider the applicant's particular circumstances. Further the reason for termination was not specific, lacked sufficient detail and the decision to terminate was pre-determined as it was made prior to the dismissal meeting occurring. Accordingly, Bechtel denied the applicant procedural fairness.
Commissioner Booth stated "The decision was not well founded in his case: it did not consider the full factual circumstances, but was a blanket approach to all participants."
Bechtel was ordered to pay compensation in lieu of reinstatement.
Conclusion
The decision confirms that a 'formula type' approach to the termination of employment of employees is inappropriate. Employers must properly investigate matters before they decide to discipline employees or terminate their employment.
In such circumstances, it is essential that employers carefully review and consider all surrounding factors, in the investigative process and the disciplinary meeting before they proceed to terminate an employee's employment.
They should also seek advice on the appropriate procedural requirements and considerations.
If you would like more information about the case or termination matters generally, please contact National Workplace Lawyers on +61 2 9233 3989.
National Workplace Lawyers
Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.