Fair Work Commission emphasises the importance of due process

Public news

The Fair Work Commission (FWC) has reminded employers that when it comes to dismissals, even "difficult" workers are entitled to natural justice, awarding compensation to an employee summarily sacked by email after repeatedly abusing his manager.

The shopfitter/cabinet maker had been employed by his employer for more than five years when he took exception to the way supervisors at his factory workplace handled his decision to park in a prohibited space to ensure the security of a motorbike he had tethered in his ute.

When later that day the dispute was raised in a telephone call with the employer's operations manager, Commissioner Ian Cambridge noted that the conversation "degenerated into an unpleasant exchange involving aggressive and abusive language" that ended only when the worker called the manager a "fucking smart arse" and hung up.

When the operations manager called back and speculated that the line had dropped out, the worker told him he had hung up, before resuming an "expletive laden tirade" and hanging up again.

"A level of tit-for-tat verbal aggression and insult between an employee and their supervisor may, in many workplace settings, be tolerated," Commissioner Cambridge observed.

"However, in even the most robust of workplace environments, conduct whereby an employee told their supervisor that they were a fucking smart arse and twice hung up on them, would likely represent misconduct that strained the employment relationship to breaking point.

"In this instance, the [worker] compounded his misconduct by verifying that he had hung up on the telephone call with [the manager], and then he proceeded to maintain the abusive and aggressive argument and hang up. . . for a second time.

"On any objective contemplation, the [worker's] aggressive and abusive verbal attack upon [the manager] which he maintained and exacerbated during the second telephone call, could not be justified by any level of initial contribution on the part of [the manager], and represented serious misconduct that was plainly contrary to any continuation of the employment relationship.

"In colloquial terms, this conduct amounted to the [worker] sacking himself."

Having determined that the employer had a valid reason to dismiss the worker for serious misconduct, Commissioner Cambridge turned to consider procedural fairness.

The commissioner heard that the company made the decision to dismiss the worker within hours, after the operations manager spoke to the employer's managing director, who told the company's financial controller to email a termination letter.

Not having read his emails that evening, the worker only learned of his summary dismissal when he turned up at the factory the following morning.

Echoing comments he made in a case last month, Commissioner Cambridge cautioned that advising employees of their dismissal via email or text "should generally be avoided. . . unless there is some compelling reason like extensive distance or genuine safety concern".

Although noting that the worker conceded before the Commission that he "probably deserved a kick up the arse", the commissioner said he did not receive an opportunity to respond to the circumstances surrounding the phone calls before the decision to dismiss him.

"The approach that was adopted by [the managing director] was severely flawed and it denied the [worker] natural justice," Commissioner Cambridge said.

"It is irrelevant that subsequently no mitigating factors have been identified which would have changed [the managing director's] mind."

"The [worker] was entitled to an opportunity to be heard before [the managing director] made the decision to dismiss.

"Even argumentative and difficult people are entitled to natural justice.

"There was no justification for not hearing from the [worker] before the decision to dismiss was made.

"Further, the communication of advice of dismissal via email was entirely inappropriate and unnecessarily harsh."

Given the dismissal's "significant" procedural defects, the commissioner found it harsh and unjust and deserving of remedy.

With reinstatement not pressed, Commissioner Cambridge concluded that the worker would have been dismissed for misconduct within two weeks if the employer gave the matter "proper and just contemplation".

Reducing the compensation by 50% due to misconduct, the commissioner ordered the employer to pay the worker $1515.

In recent times, the WR team have experienced members who have terminated employees by email, text message and a 30-second phone conversation. While there may be extreme exceptional circumstances where this is appropriate, the advice of the WR team should be sought first, and if at all possible, the usual procedural fairness requirements should be followed, including giving the employee an opportunity to respond and considering that response before making a decision.

Contact the WR team on 8291 2000 or wr@mtasant.com.au.