FWC Deems Valid Reason For Dismissal But Procedurally Unfair
The Fair Work Commission (FWC) has found that even though an employer had solid grounds for dismissal of an employee who was found to be sleeping on the job, the dismissal was not valid because the employer did not follow a proper process prior to dismissal.
Active Crane Hire’s logistics manager summarily dismissed the truck driver/yard hand last year after finding him asleep in a truck parked at its depot on NSW’s Central Coast. The employer issued a letter terminating his employment the following day.
In considering the unfair dismissal claim from the employee, Deputy President Boyce of the FWC rejected the employee’s evidence that “he was simply resting in a truck in the yard due to inclement weather” and accepted the employer’s evidence that they saw the employee sleeping, and found it constituted a valid reason for his dismissal.
However, whilst the employee was advised of the reason for his dismissal, he was not provided with an opportunity to respond “or raise issues of mitigation. . . before the decision was made to dismiss him”, Deputy President Boyce said.
Deputy President Boyce found it “significant” that various witness statements provided by the employer were “not prepared individually, but together”. For that reason, he gave the evidence contained in the statements “no weight” in considering questions of procedural fairness.
“Having regard to the fact that the [worker] was dismissed on the spot shortly after he was found to be sleeping on duty, his dismissal evinces a total absence of procedural fairness.”
In concluding that the dismissal was therefore unfair, Deputy President Boyce nevertheless determined that it was inappropriate to reinstate the worker. The matter has been programmed further hearings to determine compensation.
Lessons for Employers
The clear lesson for employers from this decision is that it is vital for employers to ensure that any disciplinary action or termination is procedurally fair. So, even though you think that you have solid and defendable reasons for dismissal, it is necessary to follow procedures to ensure fairness. Effective Workplace Solutions can provide the necessary and timely advice to our clients (either by phone, email or attend these meetings in person) to make sure that the process is properly followed, to avoid costly litigation.
Brett Steed v Active Crane Hire Pty Ltd [2023] FWC 15 (25 January 2023)
Greg Arnold – Director & Principal Consultant
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.