Big payout for unfairly dismissed employee
The Fair Work Commission in Sydney has awarded Ms Natalie Bain a payout of $54,000 for a dismissal which took place in early May. Ms Bain was employed by CPB Contractors Pty Ltd, a construction company which works in the rail, tunnelling, and building sectors. Her dismissal arose because of an incident on 21 April 2018.
What happened?
One of CPB’s other employees, Mr Skinner, alleged that on 21 April the Applicant (Ms Bain) had driven a large Moxy truck straight at him when crossing the road. Mr Skinner gave evidence that he had begun to cross, assuming he would have cleared the path of the truck Ms Bain was driving well before it reached the crossing. In his evidence Mr Skinner submitted that when he began to cross, rather than slowing down, the truck sped up. He recalled that he heard three distinct gear changes, and that he narrowly missed the truck by about a foot. Mr Skinner was quite shaken by the event, supposing that he had been only a few inches from death. He subsequently made a complaint. It was this complaint which resulted in the dismissal of the Applicant.
As to why Ms Bain would allegedly do this, the Commission examined an incident that occurred on the previous day (20 April 2018). A verbal exchange between the Applicant and Mr Skinner occurred in which the Applicant referred to him as a “c**ksmoker”. Mr Skinner used this argument to try and substantiate the claim that Ms Bain had significant ill-will towards him. The Commission flatly rejected Mr Skinner’s evidence, citing both the improbability of Ms Bain’s conduct as alleged, as well as inconsistent witness statements regarding the event on 21 April 2018.
The Commission took the view that if the events alleged by Mr Skinner were true, there would have been a valid ground for dismissal. However, because the evidence of the Respondent’s witnesses was rejected, the Commission found that there were no grounds for dismissal and Ms Bain should be compensated.
Bain v CPB Contractors Pty Ltd [2018] FWC 6273
What should you do?
If you dismiss an employee for misconduct and it ends up in hearing, the Commission will look at two things in particular:
- Did the misconduct the Applicant is being dismissed for occur? Or, is it likely on the balance of probabilities that it occurred?
- To what extent did the Employer investigate this claim before they used it to justify dismissal? Was it simply examined at face value with no real investigative process?
These two points are important. In the above case every procedure was followed to the letter. The Applicant was made aware that the conduct was of such a nature as to warrant dismissal, she was given a chance to respond to the allegations, and she had a chance to have a support person present. Despite these procedures the fact that the Commission found the alleged conduct was unlikely to have occurred meant the dismissal was unfair.
ES can help
Misconduct, and often serious misconduct, will rarely happen before an employer’s eyes. In many cases employers and organisations hear about such conduct second-hand and need to rely on employees’ testimony in establishing the veracity of any claims. Office politics and competing employee interests muddy the waters even further in investigating claims, and it can often be extremely difficult to discern the truth. Coming to the wrong conclusion, as you have just read, can result in disastrous consequences for businesses. That is why when considering termination for any reason we suggest you speak with our experienced consultants. Not only do we advise on correct procedures in these matters but can conduct thorough workplace investigations to establish the veracity of any claims. We have been doing so for over 30 years and understand the threshold requirements for evidence needed to satisfy dismissal. Contact us today to discuss your needs.