Dismissed employee succeeds in dismissal case due to deficiencies in investigation

Dismissed employee succeeds in dismissal case due to deficiencies in investigation

Dismissed employee succeeds in dismissal case due to deficiencies in investigation

Despite finding that an employer had valid reasons for dismissing a male employee who engaged in offensive behaviour towards co-workers, the Fair Work Commission has ruled the termination to be unfair due to deficiencies in the termination process. The decision again highlights the need for employers to deal with allegations in a clear, concise and reasonable fashion.

The worker, ‘SMA’, commenced work with St Marys Rugby League Club Ltd (St Marys) on 27 April 2022 and was employed as a bar attendant, quality assurer and cashier.

St Marys is a not-for-profit registered licensed club based in Western Sydney.

After initially forming close social relationships with several female staff, SMA began to conflict with some of SMA’s co-workers in early 2023.

In evidence before Deputy President Alexandra Grayson, St Marys highlighted that SMA had:

  • Verbalised abused co-workers on several occasions;
  • Physically shoved co-workers;
  • Shouted and swore at co-workers and
  • Made jokes about co-workers to fellow staff, including comments of a sexual nature.

On 15 June 2023, SMA was directed to attend a meeting with the HR Manager and another HR staff member and was handed a letter concerning comments SMA had made and a verbal altercation with a co-worker. SMA was directed to attend a further meeting on 21 June 2023. Between the two meetings, SMA made an application to the Commission seeking an order for a co-worker to stop bullying him.

On 21 June 2023, SMA attended the scheduled meeting and was advised his employment was terminated with immediate effect.

In the initial summation, Deputy President Grayson noted, “I consider the conduct of the Applicant represents a pattern of behaviour that justifies his dismissal. Although not every incident referred to sexual matters, each instance of the Applicant’s conduct was directed at a female member of staff and was likely to offend, annoy or cause hurt … Workers are entitled to expect and are expected to demonstrate basic appropriate behaviour and conduct in all workplaces”.

However, the Deputy President highlighted serious deficiencies undertaken by St Marys leading up to the dismissal. These included:

  • Failing to provide particulars as to why SMA was being dismissed;
  • Failing to provide SMA with specific issues that were being investigated concerning his alleged behaviours;
  • Failing to advise SMA prior to the scheduled meetings that his job was at risk and
  • Preparing and signing a termination letter before the dismissal meeting.

Ultimately, Deputy President Grayson concluded that “the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made”.

Consequently, the Deputy President determined that SMA’s dismissal was unfair.

The Deputy President stated that the question of appropriate remedy will be considered following further submissions from the parties.

Workforce Advisory can assist employers with a reasonable process, documentation and considered timeline for managing allegations.

SMA v St Marys Rugby League Club Ltd (U2023/6215) 30 January 2024

For queries about misconduct, investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 or via email to dean.cameron@workforceadvisory.com.au

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.

Ref: 410.0224

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