The recent Fair Work Commission (Commission) decision of Bridge v Globe Bottleshops Pty Ltd U2021/2534 highlights the risks employers face when terminating employees.
Bridge was dismissed for serious misconduct effective immediately. The serious misconduct involved comments of a sexual nature allegedly being made by Bridge to a customer on 11 March 2021. The employer said that the dismissal was made on the basis of the alleged conduct, which was found to be substantiated, and Bridge’s history of prior customer complaints and formal warnings involving poor behaviour and inappropriate comments to female customers.
The Commission heard evidence from Bridge, his employer and the customer in question. It found the customer’s evidence to be convincing and Bridge had a history of engaging with customers in a way he thought to be humorous. Whilst the Commission accepted that Bridge meant no harm or malice and thought he was being funny, the issue was that he had continued to offend customers and this was unacceptable and there was a valid reason for his dismissal.
However, the Commission found the dismissal was ‘nothing less than procedurally disastrous’ as there was little to no procedural fairness afforded to Bridge. It found that once Bridge had notified the employer that he had made a doctor’s appointment and was going on stress leave, the employer acted quickly to dismiss him, without affording him a reasonable opportunity to reply to the allegations.
In particular, Bridge was not interviewed during a flawed investigation process and there was no evidence of a proper investigation being carried out. Further, it found the decision-maker had made up his mind that Bridge was guilty of the alleged conduct before he had even commenced the investigation and had decided to dismiss Bridge prior to providing him with the allegations in full, denying him the opportunity to respond.
It found the failure to provide the CCTV footage to Bridge meant he was unable to adequately respond to the complaint. There was no show cause process and prior to his dismissal, Bridge was not provided with findings of any investigation undertaken.
The Commission found the decision to dismiss Bridge was procedurally unfair. Bridge did not seek reinstatement in compensation and the Commission awarded him $3,000 in wages plus any applicable superannuation, representing two weeks’ pay.
If you are managing allegations against employees or considering dismissal, it is important that you follow due process to avoid a dismissal being found to be unfair. All allegations should be fully put to the employee and they be given a reasonable opportunity to respond.
Do not make any finding on the allegation without a fair and impartial investigation. There should be no pre-determination of any decision when disciplining an employee and they should be fully appraised on the case against them and given a reasonable opportunity to respond.
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.