AMMA consultant Karen Nelson reviews a recent Fair Work Commission decision which highlights the influence consideration of ‘harshness’ can have in unfair dismissal cases even when an employee’s misconduct presents a clear case for termination of employment.

Karen Nelson

Karen Nelson

AN operator employed at the Mt Arthur open cut coal mine has successfully argued for the reinstatement of his position after being terminated for making racist, sexist and otherwise inappropriate comments over the two-way radio system used at the mine.

While the reasons for termination were found to be valid and the requirements of procedural fairness met, the Fair Work Commission (FWC) considered the termination to be harsh.

Background

While on the night shift, the operator spent an extended period of time chatting to other workers on a two-way radio channel usually reserved for training purposes but often used as an informal ‘chat’ channel. During this time the operator made offensive comments, some of which were lewd and sexist in nature, and others which expressed derogatory views towards Muslims.

The operator’s employment was subsequently terminated following an investigation by his employer which relied on the following two reasons:

  1. The extended period of time the operator remained on the training channel of the two-way radio during the shift, which created a safety risk to the operator and to others working at the time; and
  2. The inappropriate comments made by the operator over the two-way radio during the shift, including swearing, sexist and racist remarks, which constituted a breach of the Code of Business Conduct.

The operator lodged a claim for unfair dismissal on the basis that the termination was harsh, unjust and unreasonable.

Commissioner Saunders found no fault in the process undertaken by the employer or with the two reasons underpinning the termination, saying they constituted ‘sound, defensible and well-founded reasons for dismissal’.

Notwithstanding this, the termination of the operator was found to be harsh due to the personal and economic consequences of the dismissal on him and his dependent children. Further, the dismissal was found to be harsh because it was a disproportionate response to the seriousness of the misconduct.

Commissioner Saunders ordered the operator be reinstated into his former position and the continuity of his employment to be maintained. Back pay for the period of five months from the dismissal to the decision was not awarded as Commissioner Saunders found that the operator must accept a substantial degree of responsibility for the consequences of his conduct.

Implications for Employers

This decision demonstrates that while an employer may have a valid reason(s) and have met the requirements of procedural fairness before making a decision to terminate an employee’s employment, there is still the possibility that a successful unfair dismissal claim can be made against the business.

The FWC will consider the relative ‘harshness’ of the decision in relation to the particular circumstances of the termination. Factors such as the length and quality of the employment record, the seriousness of the misconduct, the personal and economic consequences, any mitigating factors and contextual matters, and the absence or presence of remorse shown by the employee may all be taken into account by the FWC in making a decision regarding the harshness of a dismissal.

Employers must take a holistic view of all factors surrounding the possible termination and consider the consequences of the dismissal on the individual before taking action to dismiss an employee.

Click here to view the decision.

AMMA’s experienced workplace relations consultants can provided advice on, and assistance with, workplace investigations and terminations to mitigate adverse impacts on your business. To learn more, contact an AMMA consultant near you.