Unfair Dismissal Declared Despite Reasonable Grounds

Facts of the Case 

The case involved the Yandina Hotel's bottle shop manager, whose allegedly "rude and derogatory" conduct was brought to the attention of the General Manager (GM) of the hotel through employee complaints. 

One employee described feeling “demoralised” after being spoken to harshly in front of customers, whilst another reported feeling intimidated when the manager clenched her fists during a disagreement. The manager was also accused of targeting a coworker on the staff’s Facebook page, making critical remarks that, though unnamed, were identifiable to staff.

Following an investigation with other employees, customers and suppliers, the hotel’s GM substantiated the manager’s “rude and aggressive” behaviour. The GM informed her of the complaints and referred to the code of conduct, but provided no specifics, aiming to "protect the complainants." 

The manager denied the allegations but was summarily dismissed without receiving detailed information.

Findings 

As required by the Fair Work Act 2009 Cth, the FWC assessed the dismissal based on whether the substantiated misconduct amounted to a valid reason for dismissal and whether procedural fairness was afforded to the employee. 

Deputy President Roberts acknowledged that the manager’s “aggressive and intimidatory behaviour” and “derogatory and abusive language” provided for a valid reason for dismissal. However, he noted that these grounds alone do not automatically justify a dismissal without following a fair process.

The Deputy President identified the following concerns with the process untaken by the employer:

1. The manager was not provided with an opportunity to respond to the concerns as the GM had withheld key information from the manager. By not disclosing who made the complaints or the specifics of the allegations, the GM effectively hindered the manager’s ability to respond fully. “At best, the [manager] had general allegations that she had engaged in unacceptable conduct in respect of unidentified accusers,” the Deputy President stated.
2. The GM admitted under cross-examination that he had already decided to dismiss the manager before meeting with her. The Deputy President explained that this indicated a flawed approach: “An employer cannot provide procedural fairness by simply ‘going through the motions’ when, in substance, a firm decision to terminate has already been made.” 

Based on the above findings, the Deputy President found the manager had been unfairly dismissed. 

Remedy

The Deputy President found that although the process was unfair, it was unlikely the manager’s employment would have continued past eight weeks as her misconduct had continued despite previous informal counselling sessions that had occurred. The eight weeks’ pay was reduced by 25 per cent due to the manager’s misconduct and a further amount based on what the manager had earned during that period. This resulted in $4,507 being award to the manager. 

Take Away Message for Member Clubs

Clubs are reminded: 

• to ensure procedural fairness is awarded to all employees
• to ensure that employees are fully informed of the allegations against them and are given a fair chance to respond
• that thorough documentation and communication is necessary when taking disciplinary action against employee

to contact the WR team at ClubsNSW before you terminate an employee.