The FWC (Fair Work Commission) has once again found an employee, who obviously engaged in misconduct, unfairly dismissed because of faults in a HR Manager’s approach to the disciplinary process.
The employer held a disciplinary meeting with an employee to confront him about allegations of unauthorized use of a company fuel card and failure to document and charge for freight consignments.
The operations manager conducted the meeting under the instructions of the HR manager, who had effectively made the decision to dismiss the employee. When the manager informed the employee that he was to be dismissed, he became abusive and the meeting was abruptly shut down.
Upon receiving an unfair dismissal application, the FWC rejected the employee’s claims that his actions were part of company custom and practice. It found that his actions were taken without permission and breached company policy, providing a valid reason for dismissal.
However, the FWC found that the employee had been unfairly dismissed due to the lack of procedural fairness in carrying out the disciplinary meeting. Specifically, it criticized the HR manager for not foreseeing the employee’s abusive behaviour and not coaching the operations manager in conducting the meeting based on this assumption.
The FWC further criticized the employer for making no effort to determine a lesser penalty than dismissal given the employee’s long unblemished record with the company.
In this case, the approach taken by the FWC seems to reflect that of a nanny state; it expected the HR manager to anticipate and make allowance for an abusive dummy spit by the employee and to organise the disciplinary session accordingly, rather than focus on the perpetrator for the bad behaviour.
As far as lesser sanctions go, employers could have an enterprise agreement allowing them access to alternative disciplinary measures, such as suspension, deferral of pay rises or loss of access to other benefits, where an employee’s actions may not warrant dismissal.
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