Continuing misconduct, with procedural fairness, warrants an employee’s lawful termination

Continuing misconduct, with procedural fairness, warrants an employee’s lawful termination

The Fair Work Commission has upheld the termination of an employee who repeatedly behaved in an unacceptable manner towards co-workers and managers, was unable to provide a reasonable explanation for his behaviour, nor expressed any remorse during ongoing investigations. In rejecting the application, the Commission acknowledged the procedures consistently displayed by the company in dealing with the worker.

The worker had been employed by the National Zoo & Aquarium (NZA), a zoo and wildlife lodge based in the Australian Capital Territory. Initially engaged in 2014 as a casual Maintenance Worker, he began a role as a full-time Irrigationist within the Horticulture Team until his employment was terminated for misconduct on 30 June 2021.

NZA initially became aware of allegations of misconduct by the employee on or around 12 January 2021, involving:

  • Copying staff into emails in circumstances where they were not connected to the discussions;

  • Referring to his supervisor as ‘junkie looking stranger trash’ amongst other inappropriate comments;

  • Swearing at his supervisor and challenging him to a physical altercation.

On or around 19 January 2021, NZA became aware of further allegations involving the employee:

  • Referring to certain managers in an email as being part of a ‘paedophile ring’;

  • Being on unauthorised absences from work without supplying supporting evidence.

In a disciplinary meeting held on 27 January 2021, the employee agreed with the allegations but indicated he did not regret his actions and would continue to send similar emails.

On or around 5 February 2021, there were further allegations that the employee was copying in other staff to emails and making inappropriate comments. He was issued a verbal warning.

On 10 June 2021, the employee received an invitation to attend a toolbox meeting to discuss a new drug and alcohol policy in the workplace. It was alleged that on 12 and 14 June 2021, he responded to the invitation in a non-sensical and inappropriate manner to NZA’s WHSO, which he copied to other staff, as well as making several false accusations against NZA staff and management.

He was invited to a further disciplinary meeting on 22 June 2021 and responded via email, “I am not interested in any disciplinary meetings. Yeah, I respond to emails so what. I didn’t turn up for work off my face with supporting evidence so what”. He did not attend the meeting.

NZA rescheduled the meeting for 29 June 2021, which he again declined to participate in and failed to respond in writing to the allegations put to him.

On 30 June 2021, he was informed in writing that he was being dismissed and was paid his outstanding entitlements as well as 5 weeks’ pay in lieu of notice.

Deputy President Lyndall Dean could not find fault with NZA’s process. As she noted,

“I am satisfied on the evidence that NZA took appropriate steps to provide (him) with details of the alleged misconduct and afford him an appropriate opportunity to respond to those allegations…I accept the evidence adduced by NZA that (he) repeatedly exhibited inappropriate and unprofessional behaviour in the workplace and directed aggressive comments to other members of his team, and that he failed to modify his attitude and behaviour despite prior warnings…Further, his refusal to attend the disciplinary meetings constitutes a failure to follow lawful and reasonable direction which provides a valid reason for dismissal”.

Consequently, the employee’s application for unfair dismissal was dismissed.

VF v The National Zoo & Aquarium (U2021/5771) 15 October 2021

For questions about misconduct, investigating allegations, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178, 1300 WAL LAW or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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