Authored by: John Brennan, CEO
Unfair dismissal: In the matter of Maltby vs The Trustee For the Kingston Family Trust, the Manager of the Yandina Hotel in Queensland, was terminated for misconduct.
An unfair dismissal matter handed down by the Fair Work Commission this week emphasises the need to satisfy two tests when considering terminating the employment of a staff member.
When termination of employment is being considered, there must be a valid reason and procedural fairness must also have occurred in reaching the decision.
In the matter of Maltby vs The Trustee For the Kingston Family Trust, the Manager of the bottleshop of the Yandina Hotel in Queensland, was terminated for misconduct. In the unfair dismissal matter, heard before Deputy President Roberts, it was found that there were valid reasons for termination of employment, but that the Manager was not afforded procedural fairness.
Upon receiving complaints from team members about the behaviour of the Manager, the General Manager, whom the applicant reported to, all but made up his mind immediately that the Manager’s employment needed to be terminated. The General Manager did not undertake any form of investigation and only understood the complaints of the team members at a summary level.
Further, in an attempt to protect the complainants, he did not disclose to the Manager who had complained about her.
She therefore did not have sufficient information to provide a response to the allegations nor did she have any real opportunity to respond. Under cross-examination, the General Manager conceded that nothing the Manager could have said would have convinced him that there would be any other outcome.
Key takeaways from the unfair dismissal
There are plenty of lessons to learn here.
Most of us understand the concept of a valid reason for termination.
What many fail to understand, especially in circumstances where emotions are running high, is that even when faced with a compelling reason involving misconduct, a genuine process must be undertaken that allows the decision maker to make an informed decision. The length of time required depends entirely on the circumstances.
At a minimum, when faced with an allegation of misconduct, the decision maker must make reasonable enquiries to satisfy themselves that the allegation is true or likely to be true.
Is there evidence?
Are there independent witnesses?
The person alleged to have committed misconduct must be presented with the allegation and given the opportunity to respond. It should never all happen ‘in the moment’.
They should have an opportunity to be represented or supported, when responding to allegations.
They also need a reasonable time to consider their response. Whilst there is no fixed template on how and how long this should take, there are obvious mistakes to be avoided.
In the case of the Yandina Hotel termination, it is worth reading Deputy President Roberts’ judgement, as he sets out the required aspects of procedural fairness in a very readable way.
When faced with misconduct allegations, employers should seriously consider opting for an independent investigation, conducted by unbiased experts.
For 26 years, we at iHR Australia have conducted hundreds of investigations and workplace inquiries each year. We are your trusted partner when it comes to managing people related risks.
