In this Employee Relations Update we closely examine a Fair Work Commission decision where the reasons for the dismissal were found to have been justified and yet the termination was determined to be ‘harsh’ and ‘unjust’ and therefore unfair under the Act. It can be very hard for employers to get it right. 

Key Learnings

• A termination may be justified when looking at the reasons in isolation. However, when examined in light of all the surrounding circumstances it may be harsh and unjust and therefore legally unfair under the Fair Work Act.
• Employers must take into consideration a wide range of factors before terminating an employee for capacity or conduct reasons. This can be quite difficult to do.
• Employers must take a more comprehensive approach in implementing organisational policies. Not doing so makes the policies very difficult to rely on at a later stage such as during a disciplinary process or termination.

The employee, Mr Samad, was summarily dismissed for serious misconduct after harassing another employee which included regular inappropriate comments.

The applicant, who had been employed since 2004 and was working as a truck driver, began making harassing comments to a fellow worker in mid 2024 resulting in an altercation between him and the other employee which included some aggression.

The employer investigated Mr Samad’s actions and determined that the employee’s behaviour was in breach of several of its policies after which the employee was terminated.

In coming to a decision, the Commissioner examined the requirements of S387 of the Fair Work Act (2009) in a systematic manner. Outlined below are the relevant questions asked by the Commission.

Question 1 - Did the conduct occur and did that conduct justify termination?

The applicant admitted some of the behaviours in cross examination while claiming some were just a joke. What also became clear during the hearing was that the applicant was not aware of the four policies he was said to have breached. He stated “I don’t know anything about the new policies the company say I breached. Then they sacked me. I don’t know why I should be dismissed.”

Additionally, the applicant had never been counselled about the language that he used was not appropriate or that it was a breach of policy. He stated he had volunteered to apologise to the other employee following the incident – demonstrating contrition. The Commission questioned the manner in which the employee volunteered to apologise.

Following the investigation the employer decided that the Applicant’s behaviour was a breach of the policy and met the test for serious misconduct justifying termination. In doing so the Respondent made reference to Fair Work Regulation 1.07 to support the view that the harassment was classed as serious misconduct.

The company submitted evidence that the Applicant knew about the Code of Conduct because he had been present at a toolbox meeting where the Code of Conduct had been discussed. The employer stated the other three policies relied upon were available for the employee on the company’s intranet. The employer stated that there may have been handouts at the toolbox meeting but was not sure. There was no evidence to support their notion that the Applicant was aware of the contents of the Code of Conduct.

The Commission accepted that the applicant had displayed the behaviours as presented by the Respondent’s evidence and then examined whether they could be classed as serious misconduct.

Referring to Regulation 1.07 the Commission outlined this was specifically for ‘sexual harassment’ and not general harassment and therefore could not be relied upon by the employer. He added the behaviours exhibited by the Applicant could be classed as bullying.

Ultimately, the Commissioner determined that the comments made by the Applicant of themselves did not warrant termination. When combined with other factors – including whether the Applicant was in fact remorseful he found the Respondent had a valid reason to terminate.

Question 2 - Was the Applicant notified of the valid reason?

The Commissioner indicated he was satisfied that the Applicant had been properly notified of the valid reasons for termination having had been given a ‘Letter of Allegations’ as well as information resulting from the investigation process.

Question 3 – Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

Before a final decision is made the employer must provide an employee with an opportunity to respond to any reason for their termination relating to their capacity or conduct. In such situations the employee must be aware of the precise allegations to respond to.
The Commissioner indicted he was satisfied that the employee had been provided with this opportunity.

Question 4 - What other matters are relevant?

The duration of the Applicant’s service was a key factor examined by the Commission. The Applicant had been employed for approximately 20 years with the Respondent. The Applicant stated his record had been ‘unblemished’. This was not challenged by the Respondent with any contrary evidence. The 20 years unblemished service became a key factor in the final decision of the Commissioner.

The Commission noted that the Applicant was 62 years of age, worked in a remote area and had limited skills. These factors would have a negative bearing on his future employment prospects.

The Commissioner revisited the introduction of the Code of Conduct at a Toolbox meeting and the questions around how comprehensive this was. Looking at all the circumstances he reached the conclusion the policies had not been properly implemented. He went on to state the Applicant would have been less likely to have displayed the same behaviours if he had received proper training on the policy content.

Question 5 – Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

The Commission stated that there was a valid reason for termination when looking at the Applicant’s behaviour in isolation. Given that the Applicant received details of the allegation and had an appropriate opportunity to respond, the termination could not be considered to be unfair.

However, given the Applicant’s length of service, seemingly unblemished employment record, together with his age, low chances for future employment and adding in the lack of exposure to the policies relied upon by the Respondent, the balance shifts towards an unjust termination.

On that basis the Commissioner determined the termination to be harsh and unjust and therefore unfair under the Fair Work Act. (Ramlan Abdul Samad v Phosphate Resources U2024/7715) DP O’Keeffe) 

As shown by the above case an employer can tick, what they believe to be, all the relevant boxes in making a decision to terminate. However, the Fair Work Commission, in determining whether a termination is unfair, will look beyond those factors and often at the bigger picture not related to the reasons for termination.

Given the ever-increasing complexities around terminations employers should seek professional advice to assist in identifying these non-core factors before coming to a decision to terminate.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance