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Unfair sacking verdict over investigation of difficult employee

Employers often fall victim to their emotions when dealing with a difficult employee.

Frayed tempers, perceived insubordination and impatient reactions can lead to costly employer mistakes, like an unfair sacking.

When faced with an employee who is dismissive, argumentative and wholly difficult to handle it can be tempting to cut corners with an HR investigation and ensuing decisions about disciplinary action.

As this recent decision[1] of the FWC demonstrates, a mischaracterisation of the offending conduct coupled with procedural defects can leave an employer wanting in front of the industrial umpire.


For just over a 12 month period of employment, the employee in question tested his employer’s patience.

In February of this year, more difficult behaviour sparked the employer to take action.

The incidents complained of included:

  • A late arrival at work with subsequent blood alcohol test producing a positive result
  • Refusal to accept a written warning relating to the positive test result
  • Unauthorised departure from a worksite
  • Refusal (and later acceptance “under duress”) to comply with directions to complete an incident form relating to the early departure
  • Attendance at worksite after being stood down on pay
  • Uncivil confrontation with a manager at the worksite

A final disciplinary meeting was held and the employer decided to summarily dismiss the employee for two reasons – alleged unauthorised absence from work and serious misconduct.

Dissatisfied with his sacking , the employee sought to overturn his employer’s actions by way of an unfair dismissal claim.

The Decision

While the Commission recognised the employee’s long-standing difficult behaviour and poor attitude, its scrutiny of the employer’s actions found procedural defects and a lack of a valid reason for the employee’s dismissal.

The Commission viewed that a number of the incidents, when put into context, were not sufficiently serious to justify dismissal.

Characterising the conduct as “low-level insubordination”, the Commission pointed out that much of the complained of behaviour warranted counselling and reprimand, rather than dismissal.

In a lesson for employers about the risks of not confirming directions about disciplinary matters in writing, the Commission also noted confusion and uncertainty over the process of standing-down the employee (it was not confirmed in writing).

The Commission considered that with the employee’s “intemperate frame of mind the previous day”, there was a reasonable probability the employee had “misheard or not fully processed” his manager’s direction for him not to return to work until otherwise indicated.

The Commission viewed the employee’s appearance at work the day (following his ‘standing down’) was not of its own right a matter of serious misconduct.  However, the Commission pointed out that had the decision to stand down been documented it would have been a “different matter”.

With respect to the final disciplinary meeting held with the employee, the Commission observed critically that the meeting had quickly moved from its originally held purpose and transformed into a dismissal meeting.

The Commission found that the employee was not properly notified of the reasons for his dismissal, nor was he able to adequately respond to those reasons.

The Commission held the employee’s sacking was unfair because the circumstances demonstrated that a “summary dismissal was not justified” and was “disproportionate” to the employer’s concerns about the employee’s conduct.

Lessons for Employers

While difficult employee behaviour may be frustrating and confronting, it is important to characterise the concerning behaviour correctly instead of carrying out a convenient labeling (eg. as ‘insubordination’).

Employers also need to be clear about potential disciplinary consequences in communications with an alleged wrongdoer, particularly if dismissal action is being considered.

Even if dismissal action is justified, procedural errors in a workplace investigation can jeopardise the integrity of disciplinary action against an alleged wrongdoer.

Time and again, many employers have their dismissal action overturned due to procedural flaws despite there being a valid reason for the disciplinary action.  Unfortunately, this employer failed on both counts.

[1] Robert Van Den Enden v Bechtel Construction (Australia) Pty Ltd [2013] FWC 4377 (26 July 2013)

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