Two separate cases involving the dismissal of employees with near unblemished records recently came to light. In both instances, the relevant Fair Work Commissioners found the processes followed leading to the dismissals was unjust.
In the first case, a coal miner with an unblemished record for almost 10 years of service was dismissed for committing a singular safety breach. Apparently, the employee failed to establish positive communication before entering within 50 metres of the water truck. While the Fair Work Commissioner found that the employer had a valid reason to summarily dismiss the worker, he also found the company’s process for dismissal lacked “basic procedural fairness”, and its hasty actions “effectively turned a very strong case with a valid reason to one with little or no procedural fairness”.
In the second case, a mushroom picker with 15 years’ service was dismissed for accidentally placing a harvesting knife on an incorrect hook. Prior to the last six months, the employee had a clear record of any warnings or misconduct. More recently, she was issued with a series of warnings deemed to be connected to an injury.
The COO argued the picker’s behaviour demonstrated a disregard for food safety, and because the picker understood the “seriousness of the situation”, her behaviour therefore constituted serious misconduct.
The Fair Work Commissioner described the company’s process for dismissing the picker as “entirely unjust and unreasonable”; said her actions were “unintentional, negligent action” instead of “serious misconduct” as construed. He also noted that the company did not offer the picker an opportunity to have a support person at her stand-down meeting. Further the Commissioner found the company did not adequately assess the circumstances surrounding the missing knife incident, and said the company led a “severely flawed investigation upon which it drew hasty conclusions which involved the predetermined dismissal”.
Both cases emphasise three important points.
1. When the management process is deemed unjust, the dismissal will be deemed unfair.
2. While both employees had a long history of successfully performing their jobs before these incidents, both then demonstrated counter productive workplace behaviour by breaching the relevant safety standards.
3. Both organisations failed to demonstrate that reasonable management action was taken in a reasonable way to manage the counter-productive behaviour.
What is the best way to avoid an unjust determination when addressing counter-productive behaviour? The lesson is clear.
The importance of ensuring reasonable management action is taken in a reasonable way is paramount.
Irrespective of the issue being addressed (safety, poor performance, misconduct etc) or the specific wording of your policy, the need to ensure reasonable management action occurs is vital to both resolving the problem and defending any claim of unfair dismissal.
We must realise we cannot just rely on our written policies.
Instead, we must focus our systems, processes, training, and management support on ensuring reasonable management action occurs at every step of the way.