Unfair Dismissal

Employee Compensated After Inappropriate Disciplinary Action and Investigation

An employer is able to dismiss an employee from employment if it is apparent that the employee engaged in conduct that would constitute a breach of serious misconduct. The Fair Work Regulations 2009 defines serious misconduct as conduct that is1:

(1) Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(2) Conduct that causes serious and imminent risk to:
       (a) The health and safety of a person; or
       (b) The reputation, viability or profitability of the employer’s business.


If an employee has been dismissed subject to serious misconduct, it must be established whether the reason for dismissal was ‘sound, defensible or well-founded’.2

A recent case passed through the Fair Work Commission (FWC) explores the legal framework that must be satisfied for an employer to justifiably dismiss an employee for serious misconduct.

Unfair Dismissal

In the matter of Helen Robertson v Imperial Mushrooms Pty Ltd, Ms Robertson a long-standing employee of Imperial Mushrooms Pty Ltd (Imperial Mushrooms), was dismissed from employment due to an alleged breach of serious misconduct. However, it was held by the Commission that Imperial Mushrooms failed to assess all the circumstances surrounding the dismissal fairly and objectively. As a result, the Commission found that the process was entirely unjust as the reasons of dismissal were not sound, well-founded and defensible.

Under section 385 of the Fair Work Act 2009 (the Act), to establish whether a person was unfairly dismissed or not the Commission must be satisfied that:

  1. The person has been dismissed; and
  2. The dismissal was harsh, unjust or unreasonable; and
  3. The dismissal was not consistent with the Small Business Fair Dismissal Code; and
  4. The dismissal was not a case of genuine redundancy.

In Ms Robertson’s case, the point of contention was whether the dismissal was harsh, unjust or unreasonable.  When considering whether a dismissal was harsh, section 387 of the lists various criteria for considering harshness. One of those criteria is whether there was a valid reason for the dismissal. If an employee’s conduct constituted serious misconduct, then the employer would have a valid reason to dismiss the employee.

In Lambeth v University of Western Sydney [2009] AIRC 47, an employee’s failure to abide by and follow an employer’s lawful and reasonable instruction was deemed as conduct that would constitute a valid reason for dismissal. In Ms Robertson’s case, Imperial Mushrooms claimed that the incident in question, that being misplacing a knife (tool used for work) after her shift, was a failure to follow a lawful and reasonable instruction that:

  • Caused serious and imminent risk to the health and safety of others;
  • Caused serious and imminent risk to the reputation, viability and/or profitability of Imperial Mushrooms; and
  • Represented a failure by Ms Robertson to follow and perform a lawful and reason instruction.

With respect of these points, the Commission was able to recognise that it was apparent Ms Robertson did not wilfully or deliberately misplace the knife and that only in rare circumstances would unintentional or negligent actions of an employee constitute serious misconduct. Such rare circumstances would involve gross negligence that resulted in clear, significant, or potentially significant harm to another employee or the business. If intentional and negligent conduct that caused or could cause serious harm is not found, then serious misconduct can not be established. It was held that Ms Robertson’s conduct was unintentional and although negligent, it did not result in serious or imminent risk of harm to a person, or the company’s reputation, viability, or profitability. Therefore, the Commission found that the dismissal was unable to be established as sound, well-founded and defensible.

In addition to Imperial Mushrooms mischaracterisation of serious misconduct, it was noted by the Commission that the investigation process and dismissal was improper. Although Imperial Mushrooms did hold a meeting with Ms Robertson to discuss her conduct, it was established that the decision of dismissal was already made as a termination letter was provided during the meeting. As such, the Commission held that Imperial Mushrooms did not provide Ms Robertson an opportunity to properly respond to the allegations as the dismissal was pre-determined.  

Lack of communication after the conduct

Further issues that were highlighted in this matter were Ms Robertson’s lack of communication to assist Imperial Mushrooms to find the missing knife. Imperial Mushrooms attempted to contact Ms Robertson multiple times the following day but as Ms Robertson was not scheduled to work that day the calls went unanswered. Imperial Mushrooms interpretated this as additional basis to justify the dismissal by way of serious misconduct.  The Commission noted that while it is desirable for an employee to communicate and engage with an employer when contacted on their days off work, an employer is unable to impose an obligation on the employee to do so during non-working hours. Further, if an employer were to justify a dismissal due to an employee not being uncontactable or failing to engage with the employer on a non-working day, it would be held unreasonable.

Concluding Remarks

What we can learn from cases like these is that it is important, particularly for employees who are dismissed, is to consider the circumstances and process of your dismissal. As mentioned above, the Fair Work Act requires employers to establish, an employee undertook various behaviours to warrant serious misconduct. Additionally, the Fair Work Act requires employers follow numerous procedures when potentially dismissing an employee from employment. A failure to follow both may present grounds for an employee to dispute the validity of the dismissal.

If you have experienced a dismissal from employment that you interpret as unfair, we recommend you contact a professional to ensure you do not lose any rights you may have. The Fair Work Commission has strict guidelines that must be followed. A person has 21 days from the date of dismissal to file an unfair dismissal application. Cooper Green Lawyers specialise in such claims, and should you wish to take steps to advance your matter, please do not hesitate to contact our office on 1800 314 416 or at admin@coopergreenlawyers.com.au.



1Reg 107 Fair Work Regulations

2Selvachandran v Peteron Plastic Pty Ltd [1995] IRCA 333

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