A metal fabricator employed by a boat builder has failed to convince the Fair Work Commission (FWC) his dismissal was unfair after the FWC found he deflated a tyre on a work colleague’s vehicle and took material from the workplace without permission.
The events which led to the dismissal of the applicant in the matter had their genesis in a dispute with a colleague over the return of a car battery. Things quickly escalated after the applicant was accused of deflating a tyre on the colleague’s vehicle and making a threat of harm against the colleague (allegedly to the colleague’s father who also worked for the company).
Before the FWC, the company relied on seven grounds to support the dismissal, alleging that the applicant:
- Unreasonably resisted returning a car battery to his colleague
- Deflated a tyre on the colleague’s car by removing the valve from the tyre
- Made a threat to the father of the colleague
- Took an unauthorised absence from work on 1 July 2019
- Engaged in aggressive behaviour in the workplace over a period of time
- Took wood and a sheet of melamine without permission on 22 June 2019
- Secretly recorded the dismissal meeting
The Commission rejected all of these reasons except for two. Deputy President Saunders of the FWC concluded that there was enough evidence to find that the applicant had deflated his colleague’s tyre and taken work materials for his own use without permission. That conduct amounted to a valid reason for the applicant’s dismissal.
Having a valid reason for dismissal is just the first step. In order to ensure the dismissal process is as just and equitable as possible, employees must be given a ‘fair go’ and have all allegations put to them. They must then be given an opportunity to respond before any decision made. This is colloquially referred to as the ‘show cause’ process.
In the present case, the applicant was not given any opportunity to show cause as to why his employment should not be terminated. The only allegation put to him for his response prior to his dismissal was the allegation regarding the deflation of the tyre. The Deputy President described the procedure adopted to dismiss the applicant as ‘less than desirable’ and said it weighed in favour of the applicant’s submission that his dismissal was unfair. However, where an organisation has no dedicated human resource staff familiar with the dismissal process, concessions may be made when the correct procedures are not followed. The Deputy President took this approach with Palm-Beach Motor Yachts, saying:
Although Palm Beach’s parent company in Singapore has employees with human resources expertise, there is no dispute and I find that Palm Beach did not have any dedicated human resource management specialists…
In all the circumstances, I find that the absence of dedicated human resource management specialists in Palm Beach’s enterprise had an impact on the procedures followed in effecting the dismissal…
The Deputy President then reached the conclusion that the applicant’s dismissal was not harsh, unjust or unreasonable, noting that the gravity of the misconduct outweighed the lack of procedural fairness afforded to him.