Valid reason for dismissal undone by botched investigation
Posted on June 12, 2014
A recent decision of the Fair Work Commission (FWC) serves to remind employers that in cases of serious misconduct, the investigation and disciplinary process is paramount – particularly where the employer is serviced by a HR department.
In Fitzpatrick v Bunnings Group Ltd t/as Bunnings [2014] FWC 1869, the Applicant’s employment was suddenly terminated following a heated verbal and physical altercation with another employee. It was alleged that the Applicant and Mr Simmonds got into an argument about the whereabouts of some paperwork for a customer order. Mr Simmonds ended the conversation by telling the Applicant to “go and get f*****”. The Applicant then followed Mr Simmonds into an office and the pair got into a scuffle.
The evidence regarding the extent of the fight was inconsistent, however the FWC was quick to conclude that the incident was “sufficiently serious” and that “Mr Fitzpatrick did have threatening physical contact with Mr Simmonds.”
The FWC agreed that the employer had a valid reason to terminate the Applicant’s employment. However, a valid reason is only one of the factors to determine whether a dismissal was harsh, unfair or unreasonable. The FWC turned to the investigation and disciplinary process which took place. One of the factors the FWC is required to consider is the absence of human resource management specialists which may impact on the procedures followed in effecting the dismissal.
Here, the employer had a fully serviced HR department, however it was left to two of the Applicant’s managers with no training in human resources to handle the disciplinary process, which failed in the following respects:
- The two managers had been involved in investigating a separate incident involving the Applicant, causing a perception of bias;
- One of the managers was a witness to the initial verbal altercation between the employees, again impacting upon the fairness of the process;
- The managers conducted a re-enactment of the altercation based on two witnesses’ recount of events, without the Applicant or Mr Simmonds being present.
Commissioner Cloghan commented that:
In my view, the approach adopted by the Employer’s Human Resources Department can be likened to a school taking Year 11 students on a bush camp and requiring them to go bushwalking without any training, teacher, amp, compass or survival equipment It is no wonder that the investigation, and disciplinary process, went amiss.
The FWC held that these procedural shortcomings caused the Applicant’s dismissal to be harsh, unjust or unreasonable.
Despite the seriousness of the Applicant’s misconduct and the fact that he had been involved in previous minor incidents, the Applicant’s employment was reinstated and he was provided with compensation.
