One Minute Summary

• The Applicant was employed as a casual ‘Master’ on a tourist dive boat. This is a senior responsible position.
• A range of allegations were made against him including sleeping on the job, vaping near tourists, being preoccupied on his mobile phone when on snorkelling safety watch and instructing junior unqualified and unlicensed employees to drive the boat.
• The above allegations were in breach of various policies and procedures, code of conduct and Australian maritime law.
• Following an investigation the Applicant was terminated for misconduct.
• While the FWC found there was a valid reason for termination it also found the employer’s investigation and termination processes were inadequate and compromised. As a result, the dismissal, while for valid reasons, is deemed unfair and he is Awarded $5200 in compensation.

Mr Ritter was employed with Curtis Island Services as a casual boat Master in June 2024. A Master is the person who takes responsibility for the safe operation of the boat. It is an authorised, licensed role under the Australian Maritime Security Authority. He was in charge of one of their Whitsunday tourist dive boats (the ‘Red Cat’) and had approximately 20 years’ experience at a senior level.

On 1 June 2025 a deckhand made a complaint against him alleging unsafe behaviour. 

On 3 June the employer held a training session for all employees on that boat which was later described as a ‘reset’ to encourage teamwork and reinforce key policies and procedures.

On 6 June the HR Manager met with Mr Ritter to discuss the complaint. He states he was not informed of the purpose of the meeting in advance. After the meeting Mr Ritter was provided with a letter of allegations. This comprised of 3 main allegations with 21 subpoints which supported the main allegations.

Some of the key points included:

• Sleeping on the vessel during tourist dive sessions (multiple times)
• Being occupied on his phone when he was on safety dive watch – facing away from the dive group. (multiple times)
• Openly vaping on front of guests.
• Being on his mobile phone while driving the vessel.
• Disposing of lunch leftovers into the sea close to diving guests.
• Instructing untrained and unlicensed junior crew members to drive the boat and then locating himself elsewhere on the boat.
• Not answering his radio due to being asleep.

The above points were breaches of a number of policies and procedures, code of conduct, as well as Australian Maritime law and regulations.

In response Mr Ritter raised a list of complaints about the company and crew members including:

• Breach of trust and privacy as a result of being filmed sleeping.
• Unprofessional conduct against a manager claiming he had belittled him.
• Breach of confidentiality and defamation in relation to two staff members concerning the above complaints.
• Personal and unsubstantiated bias against him.
• A formal grievance for alleged ‘ongoing, serious workplace harassment’ in relation to the allegations.
• He also responded to some of the allegations posed to him.

On 17 June a meeting was held with Mr Ritter where the allegations were discussed.

On 24 June a Teams meeting was held on where Mr Ritter was informed of the investigation outcome and was told he would be terminated for misconduct. A formal letter was subsequently sent to him. The letter was headed as ‘Investigation Outcome – Finding of Misconduct – Termination of Employment’.

‘Your actions and disregard for the companies governing policies and procedures have resulted in the employer losing faith, trust and confidence in you as our employee.’

Mr Ritter, a casual employee, made an application for unfair dismissal. In his submissions and in formal hearing, he claimed the employer did not have a valid reason for dismissal, and if there was a valid reason, the dismissal was not proportionate.  He argued that his conduct amounted to ‘a number of rather innocuous indiscretions’.

While giving evidence he either contradicted the employer’s substantiated evidence or downplayed the allegations that led to his dismissal.

In the Decision the DP Lake stated made the following comments about the Applicant:

‘While perhaps not deliberately dishonest, he often deflected and blamed others when asked about his own behaviour. He appeared preoccupied with his reputation and accused others of seeking to damage his reputation. He appeared to enjoy the theatrics of being on the witness stand.’

‘He sought to dismiss the evidence of the young women involved in the investigation, calling them “a junior group of girls who have nothing better to do than gossip”.’

‘In his witness statement, the Applicant said that Ms Abbey Harrison “had control” and that he walked away from the helm to go stand at the back of the vessel. In the hearing he said that the deckhands were not in control of the boat, they were “on watch”.

In considering the witness evidence during proceedings the Deputy President stated:

‘I found the Applicant to be the least credible witness of all the witnesses who gave evidence. The Applicant appeared to suggest that the evidence of the other witnesses was a result of collusion or…. I am not satisfied that any witness was pressured into giving false evidence.’

‘As to the suggestion that there was a group of “mean girls” intent of removing skippers they did not like from the Red Cat, there is no evidence of this. Calling reports of legitimate safety concerns gossip is trivialising. I consider that the suggestion by the Applicant in the hearing that witnesses were less reliable because of being allegedly gossipy young women is condescending at best and sexist at worst.’

The Deputy President took a very detailed walk through the evidence in this lengthy decision and concluded:

‘I find that the Respondent had a valid reason for the dismissal. As pointed out by the Respondent, in the position of Master, the Applicant is responsible for the safety and wellbeing of everyone on board. The conduct which I have found occurred and which is described below at [106] to [108], demonstrates a pattern of conduct in which the Applicant behaved inappropriately, displayed disregard for the Respondent’s rules and policies and carelessness, which is inconsistent with the Applicant’s role as a Master.’

In relation to Mr Ritter’s conduct, the Deputy President placed particular importance on Mr Ritter being occupied on his mobile phone during snorkel watch and in respect to instructing junior untrained and unlicensed employees to drive the boat while not being close by.

However, the termination was unfair despite their being a valid reason.

The letter issued on 24 June was headed as ‘Investigation Outcome – Finding of Misconduct – Termination of Employment’.  The Deputy President found fault with this letter in that Mr Ritter was not provided with an opportunity to respond to the investigation allegations stating in the decision, ‘This is an issue because the Applicant should be given an opportunity to respond before allegations are found to be substantiated’.

Once substantiated the employer would consider termination and issue a ‘Show Cause’ letter to the employee. The employee would be provided with an opportunity to respond.

The Deputy President then considers reinstating Mr Ritter into his prior position.

‘I consider that the Applicant’s conduct demonstrates a pattern of disregard for policies and procedures put in place by the Respondent. I could not with confidence reinstate a person who displays disregard for policies and procedures to a leadership role which has safety implications.’

Mr Ritter was awarded $5200 in compensation.

Commentary

This Decision shows that despite having a very solid reason for terminating, the Fair Work Commission will closely examine the investigation process concerning the misconduct and the steps thereafter including the Show Cause letter. While the Show Cause step is not provided for in any law, it has become part of the lead up to a termination. I would now be recommending a Show Cause process for nearly all terminations. Not undertaking this step is now considered inadequate in a termination process.

Yes – it’s getting much more complicated.  

In the Decision the Deputy President also makes comments around the ‘re-set’ training session. Such a meeting, when conducted properly, can be useful to an employer in later defending unfair or general protections applications. However, in this case Mr Ritter was issued with the allegation list immediately after the training occurred. There was no opportunity to gauge his response in the workplace to such training. Perhaps he may have seen the error of his ways and followed all the policies and procedures!?  

The Deputy President also raises concerns about the wording of the termination letter in respect to it accurately addressing all the allegations. Getting the wording correct in termination letters is vital. Employers need to get the content (the reason on which a termination is based) and the lead up procedure correct.

Mr Ritter was called into the meeting on 6 June for a chat. He was not informed this was the first step in the disciplinary process that was already underway.

Employers requiring advice in relation to disciplinary processes and terminations should contact Hunter Employee Relations. This includes undertaking workplace investigations into alleged misconduct or safety breaches.  

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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