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Employer gets $4.5k lesson for blowing justifiable dismissal

Workplace investigations present a minefield of challenges for understaffed or inexperienced employers.

Even where employee misconduct constitutes a valid reason for their dismissal, a failure to adequately investigate allegations will likely backfire.

When serious misconduct leads to a knee-jerk reaction, for example – a sacking, employers too often shoot themselves in the foot by failing to afford procedural fairness to alleged wrongdoers.

Unfortunately for this employer[1], a deficient and practically non-existent workplace investigation into the behaviour of an abusive and disgruntled employee left it $4.5K out of pocket.


The employee worked as a security guard for a residential premises and had done so since March 2012. He was predominantly stationed at one particular premises, ‘the Southbank building’.

Following a complaint from the building manager, the employee was advised by his employer that his services were being permanently relocated to another building.

Despite his protestations, the employee appeared to accept the relocation in a telephone call later that day. However that evening the employee attended the Southbank building in an attempt to enlist support for his cause from residents.

During this time he also viewed employer documents in the possession of the newly appointment security guard and proceeded to verbally abuse him.

The following day the employee was summarily dismissed for the alleged behaviour.  It was characterised by the employer as ‘serious misconduct’.

The employee then brought the matter before the Fair Work Commission for unfair dismissal.

The Decision

The FWC considered two main questions:

1. Did the alleged conduct occur?

2. Was the employee afforded procedural fairness?

It was clear to the Commission that on the balance of probabilities the misconduct had occurred. The behaviour was serious and inconsistent with the continuation of the employment contract.

Not only did the employee embarrass his employer and its client, potentially damaging their reputation in the process, he also verbally abused a co-worker and breached his conditions of employment.

These actions were found to constitute a valid reason for the employee’s (justifiable) dismissal.

However, it was also found that the employee was not afforded procedural fairness because the employer failed to:

  • objectively investigate the events in question
  • put the results of an investigation to the employee;
  • seek a response (opportunity to respond) from the employee in relation to the allegations;
  • adequately notify the employee of the reasons for his dismissal prior to the dismissal decision being made so that he may have responded to the allegations.

These serious failures were found to have outweighed the valid reason thus making the dismissal unreasonable and as a result, unfair.

The Commission, whilst categorising the procedural defects as serious, observed that the defects could have been remedied with basic corrective actions by the employer.

The ensuing order that the employer pay $4,500 in compensation proved an expensive lesson.

Lessons for Employers

A lack of HR expertise need not be a barrier to an effective and successful workplace investigation.

In this instance the Commission commented that the employer could have avoided its procedural failures by instead:

  • undertaking a fair, proper and rigorous investigation of the events in question and the employee’s behaviour; and
  • allowing the employee an opportunity to respond to the allegations.

Knowing how to correctly investigate allegations of misconduct and how to put these allegations to an employee can be the difference between sound, justifiable disciplinary action or a large compensation payout to a rogue ex-employee.

[1] Troy Fenton v Divadeus Pty Ltd T/A Makesafe Security Solutions [2013] FWC 5639

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