AMMA graduate employee relations consultants Chloe Sargent and Gemma Serjeant summarise the Fair Work Commission’s recent decision to award an employee 12 weeks’ compensation nearly two years after he was dismissed.

The Facts

Brett Haigh had been employed by Bradken Resources as a boilermaker for nine years when he was dismissed in December 2011 for a safety breach.

In the first instance decision in 2012 , Commissioner Williams found that termination was warranted on the basis that Mr Haigh’s conduct in setting up and cutting a large steel plate was a serious safety breach and took into account his failure to accept the nature of his conduct.

The decision was overturned on appeal in June this year when a Full Bench found that although there was a valid reason for dismissal and that Mr Haigh ought not to have flatly rejected the claims, the employer’s decision to dismiss Mr Haigh was ‘on balance’ harsh in all of the circumstances. The Full Bench remitted the matter to single member, Commissioner Cloghan (who was one of the sitting members of the Full Bench decision), to determine the remedy.

On 3 October 2013, some 21 months after Mr Haigh was dismissed, Commissioner Cloghan ordered the employer to pay 12 weeks’ compensation.

The decision of the Full Bench

Whilst the Full Bench agreed with Commissioner Williams’ decision in most respects, the turning point was that his Honours found that the Commissioner had erred in finding that Mr Haigh had been afforded natural justice throughout the investigation process.

Following the initial meeting whereby Mr Haigh had become agitated, the employer handed Mr Haigh a letter outlining the allegations. Mr Haigh responded to the letter, rejecting the claims, and was terminated shortly afterwards.

The Full Bench found that despite ‘purport[ing] to give him an opportunity to respond in writing’, the employer failed to give genuine consideration to Mr Haigh’s subsequent disputation of the claims and therefore denied him an adequate opportunity to respond.

Further, the Full Bench found that the employer’s re-enactment of the incident in Mr Haigh’s absence was a failure to afford him a proper opportunity to respond, denying him the ability to ‘confirm the accuracy of the re-enactment’.

The significance of this rested on the fact that there were no express rules or policies and determining whether the conduct was in fact unsafe could only be made with ‘individual assessment and opinions’.

Remedy

Commissioner Cloghan found that the employer had lost trust and confidence in Mr Haigh’s judgement relating to safety and it would be inappropriate to reinstate his employment.

Mr Haigh requested the maximum amount of compensation of 26 weeks’ pay. Whilst his Honour commenced at 26 weeks’ pay, taking into account the fact that Mr Haigh would have qualified for long service leave within a year of his dismissal, he ultimately awarded 12 weeks’ pay after deducting 14 weeks for the following factors:

  • Five weeks payment in lieu of notice;
  • Five weeks for Mr Haigh’s contribution to the dismissal; and
  • Four weeks for a failure to his mitigate losses.

Implications for Employers

The decision highlights the importance for employer’s to give adequate and genuine consideration to any responses provided by an employee throughout an investigation process.

In particular, where the issue relates to safety and there are no policies or procedures that have been expressly breached, whether the conduct is in fact, unsafe conduct, is a subjective test and will be assessed against individual assessments and opinions.

Frequently employers will undertake re-enactments as part of this assessment. It is integral that the employee concerned is given an opportunity to be involved in a re-enactment, as a failure to do so is a failure to give that employee an opportunity to confirm or deny the series of events.

The fact that the provision of such an opportunity may not have actually made any difference is irrelevant. Rather, procedural fairness requires that the employee be provided with the opportunity.