Beware: Procedural errors render dismissal unjust

A recent Fair Work Commission (‘FWC’) decision has demonstrated the importance of procedural fairness in dismissal proceedings. Platypus Shoes Pty Ltd’s (‘the Respondent’) store manager, Mr Jimenez (‘the Applicant’) was dismissed for serious misconduct on 9 October 2015. The allegations against the Applicant included the following:

  • Misuse of a 20% immediate family discount on shoes to a non-family customer;
  • Theft of $220 in respect to the sale of the shoes and failing to record the sale for one week;
    Removal of shoes on unpaid layby;
  • Fraudulent recording of time worked; and
  • Removing four boxes of shoes from the store without explanation

Commissioner Ian Cambridge labelled the Respondent’s allegations as “mischaracterised” and urged the Respondent to exercise caution and avoid “strong, inflammatory language” when making allegations of criminality. The Commissioner held that only one of the Respondent’s allegations of serious misconduct was founded, that is, the Applicant’s failure to properly record and receipt the cash gained from the sale of shoes to a friend. Notwithstanding this, Commissioner Cambridge found the Applicant’s explanation for the alleged misconduct “regrettably unconvincing” and sufficient to constitute a valid reason for his dismissal.

Despite this, the Respondent was criticised for its “manifestly erroneous” and “unjust” approach to the dismissal process which included:

  • Predetermining that the Applicant was guilty of theft from the outset of the dismissal process, which “contaminated” the investigative process;
  • Allowing the Applicant to continue working up until the “show cause” meeting, despite predetermining his dismissal;
  • Refusing to allow the Applicant a support person during the “show cause” meeting; and
  • Deceiving the Applicant about the true purpose of the “show cause” meeting

The Commissioner found that what would have been “an entirely fair dismissal without notice” was rendered unreasonable and unjust due to the Respondent’s “procedural errors.” The Applicant  was awarded $1,100 compensation, an estimate of one weeks’ pay. If you seek any advice and/or guidance relating to ensuring procedural fairness in the dismissal process please contact Nick Stevens, Megan Cant or Jane Murray.

Published September 2016

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