Termination Justified but Not for the Original Reason

A fire technician recently brought an unfair dismissal claim against Defend Fire Services Pty Ltd.  The Applicant had been summarily dismissed for serious misconduct.  At the time of the dismissal, the reasons given for the termination included:

1. Using a work vehicle for personal travel without authorisation and failing to maintain the vehicle in a suitable condition.
2. Concealing a roll groover attachment tool in a work vehicle when he had been asked to return it.
3. Concerns about his presentation and actions on his work site.
4. Sending an abusive text message to his supervisor on 18 October 2023.
5. Unreasonable lengthy absences from work without reasonable grounds.

In accordance with the Fair Work Act, section 387 requires that the Commission consider various matters in determining whether a dismissal was harsh, just or unreasonable, including: 

1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
2. whether the person was notified of that reason.

What is interesting about this case is that Commissioner Crawford found that there was a valid reason for termination, but it was not any of the reasons that were provided to the Applicant at the time of the dismissal.  Rather, on review of all available evidence, Commissioner Crawford found that the Applicant committed a serious safety breach when he drove to the worksite and performed work despite being knowingly medically unfit. 

The Applicant’s decision was determined to create a substantial safety risk for himself and other employees or contractors working on the site. This was deemed a serious breach of safety laws and therefore serious misconduct that provided a valid reason for dismissal.

This meant that the dismissal was not harsh, unjust or unreasonable. Although the Commission noted some procedural deficiencies, it was ultimately outweighed by the severity of the misconduct. 

The case shows that the reason given at the time of termination may not ultimately be the reason that is upheld as a valid reason which justifies the termination.  It’s also a reminder that in significantly complex matters where there are serious safety and reputational concerns, the Commission may apply some flexibility to the otherwise generally onerous requirements to afford procedural fairness. 

Should any member clubs have any questions regarding this decision, or regarding termination of employment, feel free to contact the Workplace Relations team by visiting the Workplace Relations Page on our website.