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The fruits of forethought: good planning gives employers victory in Fair Work Commission

October 02, 2018

By Alex Millman and Lindsay Carroll, NRA Legal

All too often, tales from the Fair Work Commission reveal the woes of what happens when employers are too trigger-happy in sacking their employees.

When employers lose unfair dismissal claims, it is usually because they have jumped the gun and dismissed the employee without:

  • gathering sufficient evidence to prove that the employee did the wrong thing; and/or
  • giving the employee a sufficient chance to defend themselves.

However, two recent decisions by the Fair Work Commission highlight the benefits of good policy, good procedure and good planning when called upon to defend an unfair dismissal claim.

Bajada v Trend Windows and Doors Pty Ltd [2018] FWC 5937 (‘Trend Windows case’)

In this case, the employer went to great lengths to demonstrate that it had both a valid reason for dismissal and had given the employee all reasonable chances to defend himself.

Mr Bajada and his employer had an ongoing issue with Mr Bajada’s penchant for smoking at the workplace. Whilst smoking was permitted, it was only allowed at specific locations during certain periods. Between November 2014 and October 2015 Mr Bajada was given four disciplinary documents, which he refused to sign, about his repeated breaches of this policy.

In October 2017, the employer took the additional step of posting its smoking policy on its staff noticeboard.

Also in October 2017, the Mr Bajada was directed to change production lines to pick up some slack in the other line. He refused, and following and argument with his supervisor left the worksite without permission.

Throughout October 2017, three meetings were held to discuss Mr Bajada’s absenteeism. Throughout the process, Mr Bajada’s conduct was such that by the final meeting on 31 October 2017 his heated conduct during the disciplinary process and his additional breaches of the smoking policy were added to the list of issues, and he was given a final warning with respect to his breaches of the smoking policy.

In addition to the final warning, Mr Bajada was granted paid leave for the rest of the year with the hope that, with the assistance of the employer’s EAP, he would be able to get a handle on his smoking habit.

Less than a week after returning to work in January 2018, Mr Bajada was again observed breaching the smoking policy. After arguing with his supervisor about it, he left work and did not return for the rest of week until attending disciplinary meetings about his conduct.

Meetings were held on 31 January and 6 February 2018 in which Mr Bajada was given a final chance to argue why his employment should not be terminated. With no reasonable excuse forthcoming, the employer terminated Mr Bajada’s employment.

Amba v HCL Australia Services Pty Ltd t/a HCL [2018] FWC 5786 (‘HCL case’)

Here, the misconduct of the employee may have gone unnoticed were it not for the employer’s thorough audit team.

The employer’s auditors raised concerns about Mr Amba’s expense claims in August 2017, noting that he made claims for the personal use of his motor vehicle which were contradictory – specifically, in one instance he claimed mileage on his personal vehicle in Sydney at the same time he was ostensibly in Melbourne for work-related business.

The concerns were first raised directly with Mr Amba’s immediate supervisor, who passed these on to Mr Amba for his direct response. However, the auditors were not satisfied with Mr Amba’s vague response, and conducted an internal investigation into his expense claim history.

The outcome of this investigation, given in October 2017, was that Mr Amba had made dubious expense claims of some $71,175 between 2015 and 2017. Mr Amba was issued with a notice to show cause why his employment should not be terminated, to which he responded on 3 November 2017.

Although the outcome of the show cause notice had yet to be finalised, Mr Amba tendered his resignation at the end of November 2017, specifying 10 January 2018 as his last day of work.

At a meeting on 13 December 2017 Mr Amba was questioned further about his expense claims and his response to the show cause notice. The employer subsequently began demanding repayment of the amount of the fraudulent expense claims.

Dissatisfied with Mr Amba’s explanations, the employer took the step of terminating Mr Amba’s employment on 9 January 2018, the day before his employment was to end by resignation.

What went well?

In each case, the employer conducted extensive investigations and gave the employee ample opportunity to respond to the allegations against them.

In Trend Window’s case, the employer:

  • conducted extensive fact-finding meetings before determining any disciplinary outcome; and
  • gave Mr Bajada multiple opportunities to respond to the allegations against him and to defend his ongoing employment.

Also key to Mr Bajada’s case was that his employer had very clearly, and repeatedly, instructed Mr Bajada on its smoking policy. Mr Bajada’s persistent refusal to comply with it was therefore not ignorance of the policy, but wilful disobedience.

In HCL’s case, the employer:

  • conducted an extensive forensic audit of the expense claims; and
  • gave Mr Amba several opportunities to respond to the allegations both verbally and in writing and to defend his ongoing employment.

In both cases, the employers made it clear to their employees that termination of employment was a real possibility if the employee could not come up with a reasonable excuse for their behaviour.

Both employers took the step of making sure the investigation and discipline process was recorded in writing, so when the time came to put evidence to the Commission they could rely on those documents rather than just the memory of those involved.

The fruits of their labour

When the Commission has any doubt about the process and procedures used by an employer when dismissing an employee, it historically errs on the side of caution and, where the employees have long and otherwise unblemished careers with their employer, finds that the dismissal was harsh for ‘other matters’.

However, as Trend Windows and HCL show, when an employer takes to time to minimise any doubt the Commission may have, those ‘other matters’ count for much less.

If Trend Windows or HCL had been less diligent in their investigations, or less diligent in giving their employees an opportunity to respond, it is entirely possible that they would have lost their cases and been required to pay compensation.

If nothing else, these cases demonstrate that before getting to the point of dismissing an employee – indeed, way back at the investigation stage – employers need to ask themselves “Will this stand up in the Commission?” and plan accordingly.

If you have any questions about conducting investigations or disciplinary processes, please don’t hesitate to contact NRA on 1800 RETAIL (738 245).


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