AMMA’s Hobart-based principal employee relations consultant, Bill FitzGerald, examines a recent unfair dismissal case that highlights the importance of providing employees adequate time to respond to allegations of misconduct.
IN a recent case out of South Australia (W v Corporation of the Town of Walkerville  SAIR Comm 9 (18 August 2015), the state’s industrial relations commission found that a library supervisor who sent text messages to his subordinates containing derogatory comments about higher-level management had been unfairly dismissed due to a lack of procedural fairness.
Commissioner PJ McMahon heard extensive evidence that the employment relationship had been breaking down for some time, with the supervisor being performance managed for failing to meet his KPIs.
It was also heard that management had frequently been approached by staff concerned about the supervisor’s regular ‘depressing and disturbing’ social media posts in which he complained about his work situation and colleagues, including his own subordinates.
After learning of the text messages, management gave the supervisor 24 hours’ notice to attend a meeting and provide a written response to allegations of deliberate and willful misconduct. Following the meeting he was summarily dismissed.
In deciding the matter, Commissioner MacMahon considered evidence that allegations put to the supervisor were numerous and complex and an immediate suspension prior to the meeting meant that he was denied access to emails and electronic documents that could have helped him prepare a proper response in the time allocated.
There was also evidence that the supervisor was not in a rational state of mind to allow him to decide whether he required legal representation.
Commissioner MacMahon found that the shortness of time meant that the dismissal had been procedurally unfair and the termination of employment had been harsh, commenting:
“The applicant was provided less than 24 hours to provide a written response. Given there was a possibility that the applicant was going to be terminated as the employer believed his actions amounted to serious and wilful misconduct, this seems a relatively short period of time to provide the applicant an opportunity to prepare his defense.”
In handing down his ruling, Commissioner MacMahon found that reinstatement was impracticable and in an acknowledgement of the supervisor’s poor conduct, an application for 26 weeks’ compensation was rejected in favour of six weeks’ compensation.
What can AMMA Members learn from this decision?
Circumstances of every case differ and employers should consider this when investigating conduct or performance issues.
Depending on the complexity of the issues and the seniority and length of service of the employee, the employee should be provided adequate time to review the allegations and supporting evidence and prepare a defense with the aid of a support person if needed.
As this decision demonstrates, while the case for dismissal may be strong, a lack of procedural fairness can result in an employer facing a compensation pay-out.
It is recommended that employers consult with an experienced AMMA employee relations consultant if they are unsure of how to conduct interviews following a misconduct. Assistance can also be provided in drafting, implementing communicating a social media conduct policy.