Two separate cases involving the dismissal of employees with near unblemished records recently came to light. In both instances, the FWC found the process for dismissal was unjust.

If you were deciding on an appropriate penalty for an employee who committed a safety breach, presumably you would consider factors including the severity of the safety breach, the employee’s seniority, and the penalties available.

At some point, an employee’s professional history would probably factor into your decision too. You might consider whether the employee had committed similar offences in the past, and if they had previously faced disciplinary action.

But what if the employee had an otherwise unblemished record? Would you treat them more leniently and consider the safety breach to be a minor blip on their close-to-perfect record? Or would you take the approach that their clean record and years of experience mean they should know better, leading you to dole out a harsher penalty?

Dismissed for a single mistake

Although each safety breach needs to be considered on a case-by-case basis and is dependent on the particular industry, employment lawyer at Owen Hodge Lawyers, Pooja Kapur, says long-standing experience can often work against an employee facing disciplinary action.

“Employers may impose harsher penalties on those who have more experience because a higher standard is expected. Often, employers take the attitude that if you’ve been in the industry for a long time, you should know better,” she says.

This perspective seems to be the approach adopted by Whitehaven Coal Mining, who dismissed an employee for committing a singular safety breach following almost 10 years of service with an unblemished record.

Fair Work commissioner Bernie Riordan found the coal miner’s failure to establish positive communication before entering within 50 metres of a water cart at an intersection breached one of the employer’s “safehaven rules”. He therefore said that Whitehaven had a valid reason to summarily dismiss the worker.

However, the commissioner also found the company’s process for dismissal lacked “basic procedural fairness”, and its hasty actions “effectively turned a very strong case with a valid reason to one with little or no procedural fairness”.

Of particular concern, the commissioner noted:

• Whitehaven dismissed the worker via email less than a week after the incident.
• The worker was given a day to attend a meeting and respond to a show cause notice, following which the union asked for a two-day extension to respond in writing, for the meeting to be delayed by a day, and for a support person to attend. Whitehaven gave a one-day extension, and scheduled the meeting on the day before the support person was available. Although Whitehaven said they sought to avoid extending a stressful matter over the weekend, the company’s failure to meet the union’s requests meant the worker was “denied a reasonable opportunity to answer the case against him”.
• It was “not appropriate, or in any way fair” that the operations manager who conducted the investigation process issued a show cause letter before its completion. The commissioner also said it was “difficult to believe that any lead investigator would not interview the three relevant employees” present at the time of the incident.
• The dismissal was harsh given extenuating circumstances including the employee’s role as the sole income earner for his family, and carer to his mother. The commissioner also noted the miner lives in a regional area, making it difficult to find work of a comparable nature nearby.

All in all, commissioner Riordan found the employer had “clearly made up his mind” that dismissal was the “only outcome”, irrespective of any defence the miner put forward.

Whitehaven was ordered to reinstate the worker within one week, and pay him 25 weeks’ of lost wages. The company was given a three day discount, thereby ensuring the worker was reprimanded with an equivalent punishment to his colleagues who had committed similar safety breaches.

It comes down to safety

Addressing the multiple factors that contributed to the company’s decision for dismissal, and the commissioner’s consequent decision about whether the sacking was unfair, Kapur places safety at the centre of the discussion.

“If there’s a particular breach which is risking the safety of other employees, then a higher punishment or disciplinary action needs to be enforced to prevent that from happening again, and to prevent other employees from being injured.”

For a safety breach of this nature, Kapur says that a formal warning likely wouldn’t be a sufficient penalty. “A suspension might be appropriate, but it depends on the extent of the breaches well.”

Given that other employees who had committed similar safety breaches were treated more leniently, Kapur says this factor is “something that should definitely be taken into consideration, but it might depend on the employee’s level of seniority. Is he responsible for managing other employees and prohibiting them from committing safety breaches, or is he on the same level as them?”

“There’s an attitude that if you’ve been in the industry for a long time, you should know better.” – Pooja Kapur, employment lawyer, Owen Hodge Lawyers.

Concurring with the commissioner’s finding, Kapur said the lack of proper procedures is the critical factor making the dismissal unfair.

“Had the HR department undertaken a proper and fair investigation, considered the worker’s experience throughout such investigation and then made their decision to dismiss the worker, the outcome of the case may have been different.

“The employee should have been allowed sufficient time to respond to the allegations, and to bring a support person, which was unreasonably withheld from him. That’s what resulted in it being unfair, rather than it being a case of saying, ‘It was unfair to dismiss him because of his clean record.”

Unblemished records strike again

An employee’s clean slate was recently taken into consideration in another FWC case.

This time, the case involved a mushroom picker who was dismissed for accidentally placing a harvesting knife on an incorrect hook.

It might not sound like much (and on face value, such a mistake certainly doesn’t seem sufficient to warrant dismissal), but the COO of Imperial Mushrooms argued the picker’s behaviour demonstrated a disregard for food safety, and because the picker understood the “seriousness of the situation”, her behaviour therefore constituted serious misconduct.

What’s particularly interesting about this case is that the mushroom picker had never received any warnings or engaged in misconduct in her 15 years’ service, up until she was dealt a series of warnings within a six-month period (these were deemed to be connected to her injury – more on that in a moment), before the knife incident occurred some months later.

Four days after the knife disappeared, the employee found the missing implement on her next shift, but was stood down while the HR manager conducted an investigation.

Two days later, the HR manager handed the picker a pre-prepared dismissal letter, and committed to paying her accrued entitlements and five weeks in lieu of notice. The employee was told her actions caused serious and imminent risk to health and safety and the reputation or profitability of the business, and the commissioner said she had no opportunity to plead her case.

Describing Imperial Mushrooms’ process for dismissing the picker as “entirely unjust and unreasonable”, commissioner Cambridge said what was “unintentional, negligent action” was instead misconstrued as “serious misconduct”.

He also noted that the company did not offer the picker an opportunity to have a support person at her stand-down meeting.

Adding insult to injury, Cambridge found the company did not adequately assess the circumstances surrounding the missing knife incident, and said Whitehaven led a “severely flawed investigation upon which it drew hasty conclusions which involved the predetermined dismissal”.

Imperial Mushrooms was ordered to compensate the worker with six months’ pay at $19,240.

Employee couldn’t be reached

Imperial Mushrooms’ COO said dismissal was warranted on the basis that the picker had not responded to numerous attempts to contact her about the missing knife on her day off.

Cambridge, however, said a company cannot expect their employees to spend non-working time on tasks associated with their job. On this particular point, the picker’s tenure worked in her favour. The commissioner found that the employee would have “logically presumed” the employer would check the product she picked in an attempt to locate the knife, if it could otherwise not be found.

The picker was correct in her presumption, and although the employer was “rightly aggrieved at having to conduct the product check”, her lack of responsiveness should not be considered misconduct.

Kapur agreed with this finding. 

“In my view, the commissioner commented on the mushroom picker’s lengthy experience to provide additional justification for her not urgently responding to her employer’s calls on her rostered day off; her experience told her the process the employer would likely undertake.

“Although the company would be agitated by the employee refusing to answer calls on her rostered day off and could consider this an act of ‘carelessness’ contributing to the employee’s alleged serious misconduct, it is unreasonable for an employer to use this as a reason for dismissal.”

Kapur noted, however, that whether it is reasonable to expect an employee to respond while out of the office would depend on the particular circumstances including the seniority/position/obligations of the employee, the industry, and the expectation the employee has set (by regularly answering calls in the past, for example).

Unblemished records can quickly be tarnished

There’s another complicating factor that may have impacted the picker’s lack of responsiveness on her day off, and Imperial Mushroom’s decision for dismissal.

Interrupting the employee’s “long unblemished work record” were four disciplinary warnings between February and June 2020.

The abrupt shift in the mushroom picker’s record aroused some suspicion in the FWC. 

“It may have been purely coincidental, but at least in appearance, the recent, dramatic alteration to the [picker’s] disciplinary record seemed to have some connection with restrictions placed on her work capacity and performance as a result of a workplace injury,” said the commissioner.

He found the tension between the employee and the harvesting manager “appeared to have some connection with the workplace injury”.

“It appeared that what had been a long, harmonious work relationship was encountering difficulties and it would be understandable that the [picker’s] level of commitment to ‘go over and above the call of duty’ may have waned as a result of these recent difficulties.”

Key takeaways

Kapur shares two strategies that HR managers can implement to avoid being hit with an unfair dismissal claim.

• Include a clause in employment contracts that specifies a company’s expectations and policies around availability during non-work hours. “With many of us having access to work emails on our mobile phones and with many employees now working from home, ‘clock on clock off’ times are often blurred and expectations can vary between an employee and an employer,” says Kapur.
• Implement and follow appropriate investigative procedures which the FWC will take into account. Referring to the mushroom picker case, Kapur says that “it is peculiar that the mushroom picker had a clean record for 15 years and received several warnings within a short time frame after suffering a workplace injury. It may be coincidental, but this emphasises the need for employers and HR departments to not act hastily when terminating an employee.”

Learn more about handling serious instances of misconduct and what constitutes a fair dismissal through AHRI’s short course on investigating workplace misconduct.