The Importance of Procedural Fairness in Dismissal Matters

A recent unfair dismissal decision of the Fair Work Commission comes as a helpful reminder for member clubs that if a club is considering terminating an employee’s employment, the club must ensure it has both a valid reason for the termination and that all necessary steps have been taken in the investigation and dismissal process.

The decision of Gardner v Piacentini & Son Pty Ltd [2024] FWC 211 was handed down on 19 March 2024 by Commissioner Lim. It was found that the mining industry employer Piacertini & Son undertook a flawed investigation process and substantiated allegations against an employee before he had a proper opportunity to respond.

The alleged misconduct

The alleged misconduct occurred at the employer’s Cataby mine in Western Australia, where a production supervisor (the employee) was terminated for alleged misconduct. The employer claimed its reason for termination was because the employee was uncontactable by two-way radio and had fallen asleep during two consecutive shifts.

During the unfair dismissal proceedings it was revealed that the employee had been inspecting mine pits during a night shift and parked his car to fill out a report. He maintained that he was not asleep in the car, as had been alleged by his manager, but that he was seated with the report on his lap, which gave the false impression he was sleeping. The employee further asserted that he had mistakenly bumped his two-way radio switch, making him uncontactable to other employees.

The Commission heard that the following day, the same manager found the employee in the crib room leaning back with his eyes closed at a time he should have been performing work.

Commission’s findings

The Commission acknowledged that the employee had not been asleep during the first incident and had accidentally changed the radio channel. However, it concluded that he had briefly fallen asleep in the crib room. Despite this, the Commission deemed the employer's decision to dismiss the employee unfair.

While the employee had engaged in misconduct, Commissioner Lim found his behaviour “did not rise to the bar of a valid reason for dismissal.”

Moreover, Commissioner Lim criticised the integrity of the investigation, highlighting significant procedural deficiencies, which included that: 

• The employer substantiated the allegations without formally presenting them to the employee or allowing him to respond adequately;
• Crucial evidence from the employee's dashcam footage was not considered and relevant co-workers were not interviewed; and 
• The employer inappropriately had a preconceived determination on the matter before considering the employee’s version of events.

Commissioner Lim commented that "the issues with the way the investigation was conducted are so significant" that even if she had found a valid reason for dismissal, she would still have found the employee's termination was unfair.

The Commission suggested that the misconduct would have appropriately warranted a formal warning for falling asleep in the crib room, rather than facing immediate dismissal.

Takeaways for member clubs

This case underscores the importance of conducting fair and thorough investigations of alleged workplace misconduct. Clubs must ensure that employees are given the opportunity to respond to allegations and that all relevant evidence is considered before reaching conclusions. Failure to do so not only undermines the integrity of the investigation but can also lead to unfair treatment of employees. 

Proper procedures not only protect employees' rights but also contribute to a just and equitable workplace environment and ensure clubs are taking reasonable and proportionate disciplinary action when appropriate.

For further advice, clubs can contact the ClubsNSW Workplace Relations team to discuss their specific circumstances.