Failure to follow procedural fairness likely to result in a termination being ruled unfair

Failure to follow procedural fairness likely to result in a termination being ruled unfair

A recent case before the Fair Work Commission again highlights the need for employers to ensure that employees suspected of misconduct are given the particulars of any allegations as well as an opportunity to respond to allegations before any decision is made to terminate their employment. Failure to do so is likely to result in the employee being granted compensation or reinstated to their former role in some situations.

The case involved the dismissal of a female employee ‘CP’ by Pro Help Australia Pty Ltd (Prohelp), a registered NDIS Service Provider that focuses on providing mental health outcomes to clients across South-East Queensland.

Prohelp employed CP as the Queensland Development Manager responsible for the management of the Support Co-Ordination Program NDIS. She commenced in the role as a permanent full-time employee in June 2020 until her employment was terminated on 12 November 2021. Before commencing employment with Prohelp, she had spent six months, two to three days per week, on a voluntary basis helping the business undergo a certification audit.

On 1 November 2021, CP was called to a meeting with Prohelp’s Program Manager in which several allegations were raised, largely being vague complaints from other staff about her behaviour.

On 4 November, a meeting took place during which there were some heated exchanges between CP and another employee.

The following day, 5 November 2021, CP was on a rostered day off when she received a show cause letter indicating that she was stood down with pay and that six allegations had been substantiated against her. She was requested to provide a written response as to why her employment should not be terminated by 9 November 2021.

On 9 November 2021, CP replied by email denying the allegations and requested further information regarding the allegations in order to provide a full response. The employer replied, declined to provide further details, did not accept her denials, and offered her one further day to provide any evidence to be considered.

The following day, she again complained via email about the limited details of the allegations and the refusal to provide the specifics of the allegations in order for her to provide an adequate response. She further objected that Prohelp had already substantiated the allegations without her input or comments and again reiterated her denials of inappropriate conduct.

Following a meeting on 12 November 2021, she received a letter of termination giving the reason for the dismissal as employee misconduct.

As noted by Deputy President Nicholas Lake,

“I am not satisfied that a collection of complaints from employees lacking in specificity, based on feelings regarding how the Applicant had been discharging her duties, and which could not be addressed by the Applicant, would be sufficient to warrant dismissal for misconduct”.

In the Deputy President’s estimation, none of the six allegations that Prohelp relied upon in their decision to terminate could be substantiated and therefore did not meet the requirements for a valid reason. Further,

“The decision to terminate the Applicant’s employment was unfair and harsh. The allegations were not substantiated, the investigation was cursor if at all, and I regard the decision to terminate was made without any valid reason”.

In determining compensation for CP, the Deputy President noted that she had commenced alternate employment on 16 May 2022, some 26 weeks and 3 days from her termination by Prohelp, as well as her relatively short period of employment with the business being one year and four months.

He awarded her 12 weeks’ pay, amounting to a sum of  $21,685.20.

CP v Pro Help Australia Pty Ltd [2022] FWC 1666 (28 June 2022)

For questions about dealing with allegations of misconduct, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

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