The Importance of Undertaking a Clear and Fair Process when Dismissing an Employee

By 23 July 2021Workplace
Unfair Dismissal

A recent decision of Whitfield-v-Primo Foods Pty Ltd [2021] FWC 2729 has emphasised the importance of undertaking a clear and fair process when terminating an employee.

Background

The applicant Whitfield was employed as a meat process worker at the respondent’s manufacturing plant in Wacol. She was dismissed following an altercation with another employee on 9 July 2020 for acting in a threatening manner towards the other employee.

Shortly after the disagreement with the other employee, Whitfield was directed to attend a meeting with the Human Resources Officer. A statement was taken from Whitfield and she was issued with a letter asking her to show cause why her employment should not be terminated. She was required to respond to the Show Cause Notice by 11:00am the following day. With the assistance of her Union, Whitfield provided a response to the allegation disputing what had occurred and whether she had acted in a threatening manner.

On 15 July 2020, the employer met with Whitfield and told her that her employment was terminated. It subsequently issued Whitfield with a letter of termination which simply said that after reviewing and considering her response and relevant disciplinary history, the employer had decided to terminate her employment for misconduct.

Findings

The Commission noted the onus was on the employer to show there was a valid reason for dismissal on the balance of probabilities. The Commission found that events that lead to the termination are relevant in the factual matrix. It determined that the busy bacon line and failures on the employer’s part to have the right equipment on hand caused significant stress to both Whitfield and the other employee.

The Commission expressed concern about some identical wording in written statements by two witnesses and the fact that the handwritten notes of interviews with these witnesses did not refer to Whitfield wanting to hit the other employee in the head, while both formally typed statements did, casting doubt on the independence and credibility of this evidence.

It was satisfied that Whitfield had said she wanted to knock the other employee off her perch, intending it to express frustration and anger, but not as a threat of violence. While it was considered an inappropriate and intemperate remark made when angry and the remark was unacceptable, the question was whether it was a valid reason for dismissal.

The evidence of Whitfield was preferred over the employer’s witnesses concluding that Whitfield engaged in an intemperate exchange and frustrated remarks but they were not elevated to actual threats and the events leading to the termination did not constitute a valid reason for the purposes of the Fair Work Act.

The Commission noted the earlier safety breach which formed another basis for dismissal had occurred some twelve months earlier. There were no other breaches before or after in a career lasting over a decade.

The Commission noted that this earlier breach was not put to Whitfield for response in the show cause letter and did not satisfy the requirement that notification of the valid reason should be in explicit terms.

It was noted that Whitfield wasn’t given any investigation report or summary of the investigation findings nor given an opportunity at the last meeting to argue her case or provide any further response. It was further noted that the employer failed to follow its prescribed process.

The Commission was therefore not satisfied Whitfield was given an opportunity to respond to the allegations as to her conduct in a procedurally appropriate manner.

Whitfield had worked for the employer for nearly eleven years and there was no evidence of any performance or conduct issues prior to a warning in July 2019 until the present incident. It determined the dismissal was harsh in all the circumstances.

The Commission determined that reinstatement was the appropriate remedy and ordered that the employee be reinstated.

Takeaways

This decision emphasises the importance of following appropriate processes when investigating allegations against employees and initiating action to terminate an employee. Care must be exercised to properly obtain and assess the evidence and make an objective considered assessment of the facts.

If you are managing performance or disciplinary matters, please do not hesitate to contact Suzanne Wishart, Chris Lowe or Matt Bell on 1300 068 736 to discuss the appropriate approach and steps you need to follow to minimise your risks of facing an order for reinstatement.

This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.

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