Procedural Fairness Paramount in Dismissal

A recent case before the FWC demonstrates the importance of ensuring procedural fairness in dismissing an employee. In Kirkbright v K&S Freighters Pty Ltd [2016] FWC 1555, Commissioner Bissett held that, although the employer had a valid reason for dismissing Mr Colin Kirkbright, the deficiencies in the employer’s dismissal procedure resulted in the dismissal being harsh, disproportionate and unreasonable.

K&S Freighters Pty Ltd (“K&S”) dismissed Mr Kirkbright from his unblemished employment of 30 years for unauthorised personal use of a company

fuel card during annual leave despite clear instructions to the contrary and for knowingly sending freight without necessary documentation, both which constituted a breach of well-established K&S policy.

Commissioner Bissett held that these factors constituted a valid reason for dismissal within the meaning of the Fair Work Act 2009 (Cth) (“FW Act”).

However, Mr Kirkbright was successful in his unfair dismissal application due to deficiencies in K&S’s dismissal process, ostensibly due to a lack of communication between the various managers involved in the process.

In reaching her decision, Commissioner Bissett took into account that K&S, during its meeting with Mr Kirkbright on 17 August 2015 (“the 17 August Meeting”), or any other time, did not provide Mr Kirkbright with an opportunity to consider the claims being made against him, or to properly provide an opportunity to respond. During the 17 August Meeting, Mr Kirkbright “displayed an appalling lack of respect for his manager and co-worker… [but] this was the first time he had been confronted with the allegations. His reaction was not outside the realm of possibilities and should have been foreseen. The human resource manager, if she had not, should have walked [the Manager] through what to do in such a circumstance. The meeting should have been halted”. [Emphasis added]

Mr Kirkbright’s 30 years of unblemished service with K&S was a substantial factor in Commissioner Bissett’s consideration of the unreasonableness of the dismissal, but weight was not given to the letter of termination having been prepared prior to the 17 August Meeting.

Commissioner Bissett held the view that an appropriate dismissal procedure should have involved providing Mr Kirkbright with the allegations against him in writing, followed by a meeting a few days later. This process would have allowed Mr Kirkbright to properly respond to the allegations put to him.

Commissioner Bissett found that reinstatement would be inappropriate due to the breakdown in trust and confidence and ordered further submissions and evidence to be filed in relation to compensation.

Please contact Nick Stevens, Megan Cant or Jane Murray if you have any questions regarding how to maintain procedural fairness in disciplinary matters.

Published May 2016

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