Employ­ee suc­ceeds in prov­ing Unfair Dis­missal but is left with­out a remedy

In Brief

In an extra­or­di­nary deci­sion, Fair Work Aus­tralia (FWA) has found an unfair dis­missal despite the employ­er prov­ing a valid rea­son for dis­missal and com­pli­ance with the pro­ce­dur­al jus­tice require­ments. In a fur­ther twist, the employ­ee was left with­out a remedy.

Mark Not­man v Neway Trans­port [2011] FWA 5162

Mark Not­man (Not­man) was employed by Neway Trans­port (the Employ­er) for ten years. Fol­low­ing an inves­ti­ga­tion in which it was alleged that Not­man uri­nat­ed in front of a female employ­ee, the Employ­er ter­mi­nat­ed Not­man and gave him four weeks pay in lieu of notice.

Lat­er evi­dence revealed that Not­man did not in fact uri­nate in front of the female clean­er, but rather entered the toi­let whilst the female clean­er was clean­ing and start­ed to unzip his trousers as he stepped over her clean­ing equipment.

Not­man lodged an unfair dis­missal claim with FWA.

First Issue – Was there a valid rea­son for dismissal?

As has been pre­vi­ous­ly empha­sised in an ear­li­er arti­cle Valid rea­son for dis­missal the key to defend­ing unfair dis­missal claims, the pri­ma­ry con­sid­er­a­tion in an unfair dis­missal claim con­cerns whether there was a valid rea­son for the dismissal.

Com­mis­sion­er Bis­sett found that Not­man’s actions in start­ing to unzip his trousers in front of the female clean­er showed a total dis­re­gard for her and left her feel­ing humil­i­at­ed. His actions also con­tra­vened the Employ­er’s poli­cies on sex­u­al harass­ment, work­place harass­ment and eth­i­cal standards.

Accord­ing­ly, Com­mis­sion­er Bis­sett found that there was a valid rea­son for dismissal.

Sec­ond Issue – Was Not­man afford­ed pro­ce­dur­al jus­tice by the Employer?

After estab­lish­ing a valid rea­son for dis­missal, the sec­ond issue in an unfair dis­missal claim con­cerns whether the employ­er has afford­ed pro­ce­dur­al jus­tice to the employ­ee by noti­fy­ing the employ­ee of the rea­son and pro­vid­ing the employ­ee with an oppor­tu­ni­ty to respond.

Com­mis­sion­er Bis­sett found that the Employ­er had afford­ed Not­man with pro­ce­dur­al jus­tice by ask­ing for an expla­na­tion to the alle­ga­tion, invit­ing him to a meet­ing (which he did not attend), con­sid­er­ing Not­man’s writ­ten state­ment and invit­ing him to a fur­ther meet­ing which he fur­ther declined to attend. His Hon­our not­ed that an employ­ee can­not decline invi­ta­tions to meet with the employ­er and then com­plain that he was denied pro­ce­dur­al justice.

Third Issue – Was the dis­missal unfair?

Gen­er­al­ly, when there is a valid rea­son for dis­missal and com­pli­ance with the pro­ce­dur­al jus­tice require­ments, there is scant basis for a suc­cess­ful unfair dis­missal claim. How­ev­er, Com­mis­sion­er Bis­sett inter­est­ing­ly found that the dis­missal was unfair on the basis of the employ­ee’s con­tri­tion and the dis­pro­por­tion­ate response of the employ­er. In oth­er words, his Hon­our found that the penal­ty of ter­mi­na­tion was harsh in response to the misconduct.

The find­ing, how­ev­er, leaves open the questions: 

  1. Was there real­ly a valid rea­son for dis­missal if it was lat­er found that the penal­ty of ter­mi­na­tion was too harsh? 
  2. Was it real­ly the case that there was not a valid rea­son for dis­missal in the first place?
No enti­tle­ment to a rem­e­dy because of misconduct

Notwith­stand­ing the find­ing that the dis­missal was unfair, Com­mis­sion­er Bis­sett refused to award com­pen­sa­tion to Not­man because of his mis­con­duct. Fur­ther, it was found that his actions were the rea­son for his ter­mi­na­tion and he had humil­i­at­ed and caused dis­tress to the female cleaner.

Sig­nif­i­cance of the deci­sion for employers

This deci­sion pro­vides a time­ly reminder to employ­ers that although it may appear that they have a valid rea­son for dis­missal, they need to con­sid­er whether dis­miss­ing an employ­ee who has com­mit­ted some form of mis­con­duct is an appro­pri­ate response. Nonethe­less, employ­ers can take com­fort from the posi­tion tak­en by Com­mis­sion­er Bis­sett in deny­ing com­pen­sa­tion in full on the basis of the employ­ee’s mis­con­duct. How­ev­er, it can­not be guar­an­teed that a FWA mem­ber will take such a strict approach in future cas­es con­cern­ing employ­ee misconduct.

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