Lack of pro­ce­dur­al fair­ness does­n’t nec­es­sar­i­ly mean unfair dismissal

In arti­cles and pre­sen­ta­tions on unfair dis­missal the impor­tance of pro­ce­dur­al fair­ness is a recur­ring theme. 

This reflects sec­tions 387 (b) and (c ) of the Fair Work Act 2009 (Cth) which stip­u­late that, in con­sid­er­ing whether it is sat­is­fied that a dis­missal was harsh, unjust or unrea­son­able, the Fair Work Com­mis­sion (FWC) must take into account whether the employ­ee was noti­fied of the rea­son for dis­missal and was giv­en an oppor­tu­ni­ty to respond to any rea­son relat­ed to their capac­i­ty or conduct.

As such, there is an under­stand­able per­cep­tion that where there is sig­nif­i­cant fail­ure of pro­ce­dur­al fair­ness it is axiomat­ic the FWC will find the dis­missal unfair.

The recent FWC deci­sion of Carme­lo Sapien­za v Cash in Tran­sit Pty Ltd T/A Secure Cash (U2017/8576), how­ev­er, pro­vides some hope for employ­ers that even where there is a man­i­fest fail­ure to afford pro­ce­dur­al fair­ness the dis­missal might not nec­es­sar­i­ly be held to be unfair.

Before embark­ing upon an exam­i­na­tion of the case itself, there is a very impor­tant point to be made at the out­set (which will be repeat­ed below): the best way employ­ers can put them­selves in the strongest posi­tion to defend unfair dis­missal pro­ceed­ings is to pro­vide employ­ees with pro­ce­dur­al fair­ness, even in cir­cum­stances where the sit­u­a­tion appears to be open-and-shut”. This deci­sion might pro­vide some com­fort where, for what­ev­er rea­son, an employ­er has not afford­ed pro­ce­dur­al fair­ness (or there have been seri­ous pro­ce­dur­al defi­cien­cies) in the course of a ter­mi­na­tion and is fac­ing an unfair dis­missal claim or the threat of one. 

The Sapien­za decision

The appli­cant, Mr Sapien­za, was employed by Secure Cash (and its pre­de­ces­sor enti­ty) as a bank­ing couri­er. This posi­tion involved vis­it­ing clients’ premis­es, tak­ing their sur­plus cash and bank­ing it on their behalf.

Mr Sapien­za­’s employ­ment with Secure Cash was ter­mi­nat­ed sum­mar­i­ly on 18 July 2017 by way of letter. 

The ter­mi­na­tion let­ter relied upon three com­plaints against Mr Sapienza.

Mr Sapien­za denied the first two com­plaints in toto, adding that he was unaware of these com­plaints until he received the ter­mi­na­tion let­ter from Secure Cash.

Giv­en the absence of con­tra­dict­ing evi­dence from Secure Cash (which did not appear at the final hear­ing) the FWC held that these denials from Mr Sapien­za should be accept­ed and that nei­ther of these two com­plaints con­sti­tut­ed a valid rea­son for termination.

The third com­plaint, on which this case turned, was of a more seri­ous nature. Secure Cash received a writ­ten com­plaint from a client, a ladies cloth­ing shop, which made a series of alle­ga­tions against Mr Sapien­za. These alle­ga­tions became the basis for the third complaint.

The first alle­ga­tion was that he said to a female staff member:

When will you be leav­ing your boyfriend so we can run away together?”

Mr Sapien­za denied mak­ing this statement.

The sec­ond alle­ga­tion was that Mr Sapien­za told staff mem­bers they were good look­ing and asked one eigh­teen year old employ­ee for her tele­phone num­ber. Mr Sapien­za also denied this.

Mr Sapien­za also denied say­ing to young female employ­ees that he had dat­ed girls of their age. In his denial Mr Sapien­za stat­ed that he is a forty-eight year old male with no inter­est in women who are eighteen.

Mr Sapien­za­’s denials to these three alle­ga­tions were accept­ed by the FWC.

It was also alleged that in the course of col­lect­ing the bank­ing Mr Sapien­za told two female team mem­bers they had missed his birth­day and, while lean­ing over the counter putting his cheek up to the faces of the women, asked:

Where is my kiss?”

It was alleged that in the course of kiss­ing his cheek the young women advised that they felt uncom­fort­able and pres­sured to do so.

The employ­ees of the store also alleged that Mr Sapien­za got phys­i­cal­ly close to them, put his arms around the waist of a staff mem­ber, placed his hand on a staff mem­ber’s hip and would hug staff when he was leav­ing the shop.

Mr Sapien­za­’s response in the FWC to these alle­ga­tions was that after get­ting to know the staff of the shop well he did hug female staff on arriv­ing and leav­ing the premis­es. He said they also hugged him. He con­ced­ed he may have put his arm on the hip of an employ­ee but had no spe­cif­ic rec­ol­lec­tion of this. He accept­ed that he may have asked the female employ­ees for a kiss. He said this request was a prod­uct of his cheeky nature and ten­den­cy to joke around”.

As with the oth­er two com­plaints, he said the first time he had ever heard of the var­i­ous alle­ga­tions that com­prised the third com­plaint was when he read the ter­mi­na­tion letter.

As such, he was nev­er afford­ed an oppor­tu­ni­ty by the employ­er to put his response to the com­plaints. The expla­na­tion he gave to the FWC for his con­duct was that he was Ital­ian and there­fore accus­tomed to giv­ing and show­ing affec­tion. To illus­trate his demon­stra­tive, tac­tile nature he recount­ed the sto­ry that he kissed his father every time he saw him until he passed away. 

He said he hugged staff at oth­er client premis­es although they were, by his esti­ma­tion, in their for­ties rather than eigh­teen. Mr Sapien­za said he believed the phys­i­cal encoun­ters were con­sen­su­al and friend­ly. If he had thought oth­er­wise, he would have stopped doing it. He said there was no sex­u­al con­no­ta­tion” in his conduct.

As not­ed above, the FWC found the first two com­plaints in the ter­mi­na­tion let­ter did not con­sti­tute a valid rea­son for ter­mi­na­tion. In respect of the third com­plaint, the pre­sid­ing mem­ber of the FWC in this case, Deputy Pres­i­dent Bull, stated:

I find that the admis­sion by Mr Sapien­za that he did hug and ask for a kiss from women as young as 18 years was suf­fi­cient to sub­stan­ti­ate that the respon­dent had a valid rea­son for the appli­can­t’s ter­mi­na­tion of employ­ment. Despite Mr Sapien­za­’s expla­na­tion that his con­duct was due to his Ital­ian her­itage and being of an affec­tion­ate nature, the actions were improp­er, unpro­fes­sion­al and naïve, to say the least.”

While Deputy Pres­i­dent Bull held Mr Sapien­za had been noti­fied of the rea­sons for ter­mi­na­tion in the ter­mi­na­tion let­ter, he not­ed Mr Sapien­za was not pro­vid­ed with any oppor­tu­ni­ty to respond to those rea­sons, as he was sum­mar­i­ly ter­mi­nat­ed with­out even the oppor­tu­ni­ty of a con­ver­sa­tion with Secure Cash.

As a result, Deputy Pres­i­dent Bull observed the dis­missal of Mr Sapien­za was seri­ous­ly lack­ing in pro­ce­dur­al fair­ness”.
Notwith­stand­ing this, how­ev­er, the ter­mi­na­tion was found not to be harsh, unjust or unrea­son­able. This find­ing was on the basis of Mr Sapien­za­’s admis­sions in respect of his phys­i­cal con­tact with the young female staff of the shop.
Deputy Pres­i­dent Bull stated:

This con­clu­sion is reached hav­ing regard to the con­sid­er­able age dif­fer­ence between Mr Sapien­za and the female employ­ees. The expla­na­tion pro­vid­ed by Mr Sapien­za of show­ing affec­tion due to his Ital­ian her­itage fall short of jus­ti­fi­ca­tion for such behav­iour towards oth­er­wise unre­lat­ed per­sons. This is a com­plete and dis­tinct dif­fer­ence from how one may con­duct them­selves with phys­i­cal famil­iar­i­ty towards friends or in a fam­i­ly environment.”

His Hon­our con­tin­ued:
If Mr Sapien­za did not know or appre­ci­ate that it is inap­pro­pri­ate ask­ing 18 year old females for a kiss and indulging in the prac­tice of hug­ging as a greet­ing or good­bye, which may not be rec­i­p­ro­cat­ed will­ing­ly by much younger per­sons, he ought to.”
The seri­ous defi­cien­cies in pro­ce­dur­al fair­ness were rec­on­ciled with the find­ing the dis­missal was not unfair as fol­lows:
I have con­sid­ered the clear pro­ce­dur­al defi­cien­cies involved in Mr Sapien­za­’s dis­missal and the fact that he was unem­ployed for a 2 month peri­od, viewed against his lim­it­ed ser­vice with the respon­dent and the nature of the con­duct in regard to the third com­plaint, which to his cred­it Mr Sapien­za accept­ed some of which did occur.”

In short, the grav­i­ty of the admit­ted con­duct was such that it out­weighed the man­i­fest lack of pro­ce­dur­al fairness

Con­sis­tent Approach – Pro­ce­dur­al Fair­ness v Seri­ous­ness of Conduct

This deci­sion is not an aber­ra­tion or out­lier. A sim­i­lar approach has been adopt­ed in oth­er FWC cas­es. One exam­ple is Michael Albert v Alice Springs Town Coun­cil (U2016/10304).
In this deci­sion Com­mis­sion­er Wil­son sur­veyed rel­e­vant author­i­ties and dis­tilled the two ques­tions that will be posed in such cas­es:

The Com­mis­sion has also held, in rela­tion to mat­ters of mis­con­duct gen­er­al­ly, that in cir­cum­stances in which pro­ce­dur­al faults are estab­lished that two ques­tions arise for con­sid­er­a­tion; did the seri­ous­ness of the mis­con­duct out­weigh any pro­ce­dur­al faults and would the pro­ce­dur­al faults have affect­ed or altered the ulti­mate out­come of the dis­missal?”

Com­mis­sion­er Wil­son found that the very high read­ing on a drug test returned by an employ­ee who oper­at­ed heavy machin­ery per­form­ing safe­ty-crit­i­cal work gave the employ­er a valid rea­son for ter­mi­na­tion. Although the employ­ee was not pro­vid­ed the oppor­tu­ni­ty to respond to that rea­son, the seri­ous­ness of the con­duct out­weighed the pro­ce­dur­al faults and even if those pro­ce­dur­al faults had been reme­died a dif­fer­ent out­come would have been unlike­ly. As a result the dis­missal was held not to be unfair.

Does Pro­ce­dur­al Fair­ness Real­ly Matter?

A super­fi­cial read­ing of these deci­sions might lead to the con­clu­sion that pro­ce­dur­al fair­ness does­n’t mat­ter, par­tic­u­lar­ly where the employ­er is con­fi­dent seri­ous mis­con­duct con­sti­tut­ing a valid rea­son for ter­mi­na­tion can ulti­mate­ly be proven before the FWC.

It would be unwise, how­ev­er, for employ­ers to use these deci­sions as a rea­son to cut cor­ners on pro­ce­dure. Pro­ce­dur­al fair­ness is a fac­tor the FWC must con­sid­er in all unfair dis­missal cas­es relat­ing to per­for­mance or mis­con­duct. There are numer­ous exam­ples where employ­ers have come unstuck due to defi­cien­cies in pro­ce­dure, even where an employ­ee has, on the face of it, engaged in con­duct that would safe­ly jus­ti­fy ter­mi­na­tion. Rather than rolling the dice and hop­ing for the best, employ­ers would be bet­ter served pro­vid­ing employ­ees with an oppor­tu­ni­ty to ful­ly respond to alle­ga­tions, prop­er­ly con­sid­er­ing any response giv­en and then mak­ing an informed deci­sion on out­comes based on that response.

The val­ue of these cas­es is to show that hope may not be lost for an employ­er when these steps haven’t been tak­en and there are pro­ce­dur­al defi­cien­cies. While they might pro­vide a way to paper over the cracks, they don’t reflect best prac­tice in effect­ing dismissals.