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A ‘bl**dy bad’ disciplinary record…

To say that the employee in question had a poor disciplinary record is an understatement.

An employee of a paint and chemicals company for just on 24 years; he had received 3 verbal warnings between June 2010 and February 2012 for smoking outside his permitted break times. On the first of those occasions when confronted by his manager, the employee replied that he did not “give a f***” and that the manager may as well give him a final warning.

The worker’s employment continued and so did his disciplinary issues.

Only a few months later the employee received a final written warning (March 2012) for failing to properly explain a 3 day absence from work.

The employment lasted another 3 months until it was brought to its seemingly inevitable end following an incident with a supervisor.

The final straw

After discovering the employee had not followed his allocated job list as instructed, the supervisor confronted the employee.

During the ensuing argument the employee shouted, called his supervisor “an idiot” and used foul language. The supervisor remained “mild-mannered” and asked the employee to stop shouting and swearing.

Following the altercation, the supervisor lodged a complaint with management.

The HR investigation & the dismissal

The employer conducted an HR investigation into the supervisor’s complaint that alleged the employee had:

  • been extremely aggressive;
  • stood up to within inches of his face;
  • used continuous foul language.

The HR investigation included:

  • a meeting (5 July 2012) in which the allegations were put to the employee for his comment.
  • a meeting (9 July ) in which a show cause letter giving 2 days to respond was issued.
  • a letter of termination (12 July) notifying of instant dismissal due to “serious misconduct”.

The employee didn’t take kindly to his dismissal and filed an unfair dismissal claim.

The outcome

The hearing of the unfair dismissal claim[1] involved disagreement as to what was actually said in the incident between the employee and the supervisor.

The Fair Work Commission accepted that the employee had become loud, frustrated and emotional and that he used expressive arm gestures. The FWC also found that the employee had called his supervisor an “idiot” and later, a “d**khead”.

However, the FWC did not accept:

  • some of the more serious foul language alleged to have been used by the employee;
  • that the employee had come as close as 6 inches from the supervisor’s face.

FWC did not agree with the employer’s characterisation of the offending behaviour as serious misconduct. Rather, it considered the conduct simply as “misconduct” but nevertheless recognised it as unacceptable workplace behaviour, which it did not condone.

Even though the FWC considered the employer did have a valid reason to terminate the worker’s employment – it ruled that the employee was unfairly dismissed.

Why did it go wrong for the employer?

There were serious flaws in the employer’s HR investigation that caused the employee’s dismissal to be procedurally unfair. The seriousness of the procedural flaws outweighed the gravity of the employee’s misconduct.

In particular FWC found that:

  • The employee did not have a full opportunity to respond to the allegations – the employee was repeatedly interrupted and ‘talked over’ when answering questions.
  • The HR manager knowingly and in bad faith included an inaccurate representation in the Show Cause letter of what the employee had said in response to questions.
  • The nature of the HR manager’s misrepresentation cast the employee’s conduct in a worse light than if, what he had actually said, had been included.
  • The employee’s conduct bore similarity to a previous incident in which a manager swore at another employee but for which no action was taken.

Lessons for employers

This case demonstrates that having a valid reason to dismiss a misbehaving employee is not the end of the matter for an employer.

There is the further obligation to provide procedural fairness to the alleged wrongdoer during the conduct of the employer’s HR investigation.

It is important for employers to ensure their HR investigations are beyond reproach.

Failing to provide procedural fairness risks a ‘bad apple’ being reinstated straight back into the employer’s workplace.

Employers need to thoroughly understand the concept of procedural fairness and how to apply it in day-to-day situations.

[1] Guido v Akzo Nobel Pty Ltd [2013] FWC 1222 (7 March 2013)

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