In a recent unfair dismissal decision[1], the Fair Work Commission found that an employee had not been treated fairly and his dismissal was harsh. The Commission criticized an HR Manager for acting in bad faith after a long-term employee was dismissed following several reprimands for inappropriate conduct in the work place and for an illegitimate sick leave.

What happened?

Mr Guido had been given three warnings for foul language between June 2010 and February 2012. On one occasion he apparently said to his supervisor, “I don’t give a f**k. You may as well fire me right now.”

Mr Guido then knowingly and willingly took sick leave without justification or proof in March 2012. During this time he was spotted at a pub 100 meters away from his place of work. He was formally warned.

The act that then prompted the dismissal occurred on 4July 2012. Mr Guido and his supervisor had a disagreement over how Mr Guido’s job should be done. This confrontation escalated in Mr Guido referring to his supervisor as a “d***head”, the situation as “f**ked” and Mr Guido “getting up in his (supervisor’s) face”.

The evidence of Mr Guido and his supervisor regarding the exact distance they were apart from each other during the argument was conflicting and became a critical issue. It was ultimately found that the distance between the two men was more likely an arm’s length away, instead of 6 inches.

Show cause letter

The show cause letter issued to Mr Guido about the incident stated “you then told us that you stepped into Brendan’s face (approximately 6 inches away)…

The show cause letter had been drafted by the HR Manager. The HR Manager was criticised for acting in bad faith by putting these words in Mr Guido’s mouth, where Mr Guido had in fact told him that he had been within 6 inches to 2 feet away from his supervisor. It was the supervisor that had stated the distance as 6 inches.

The Commission found this was a misrepresentation of a statement by the employer of a crucial factual element. At the hearing it was found that only the supervisor’s view was heard and Mr Guido’s statements were overlooked. The response meeting, held between Mr Guido and the HR Manger, was also criticised as being unfair as a result of any comment made by Mr Guido being  either cut-off or ignored.

It also came to light that the supervisor  had, in a separate incident known to the company at the time, used inappropriate language when talking to another employee about a work issue, telling him to “shut the f**k up”. However no action was taken against the supervisor for this incident.


The Commission decided that the dismissal was harsh and unfair on the basis that:

  • there was unequal treatment between the supervisor, who had not been disciplined in relation to the other incident, and the employee;
  • there was clear procedural unfairness that accompanied the show cause letter; and
  • while there was a valid reason for dismissal, it only amounted to misconduct and not gross misconduct as identified by the employer.

Mr Guido was awarded compensation in an amount yet to be determined. At the time of publishing no further decision on compensation has been announced.

Lessons for employers

Investigating employee misconduct, especially when it involves conflicting witness evidence is an unenviable task. It often falls to HR Managers to play the role of investigator, judge and jury in deciding which version of events to believe.

This case serves as a lesson to those performing such roles to carefully collect, evaluate and consider all versions of the event and  not to skim over the crucial minutiae of each factual element of the misconduct under investigation. It also emphasises the need to critically review show cause notices for factual accuracy prior to issue.

This case also serves as a reminder to be vigilant about treating employees equally. The Commission will take a dim view of employers applying different