The Fair Work Commission (FWC) has granted interim orders to halt a disciplinary process (in effect preventing any dismissal that may result) pending determination of related disputes.
The employer in this case, the Metropolitan Fire & Emergency Services Board (MFB) commenced a disciplinary process after discovering pornographic, racist and otherwise inappropriate emails. The disciplinary process had been underway for some period of time, and the union of the employee concerned had lodged disputes with the FWC under an applicable enterprise agreement about the disciplinary process.
The employee’s union sought interim orders to stop the MFB from continuing its disciplinary process through to conclusion, where such conclusion could result in dismissal. The FWC made the order sought - to the effect that, until the employee’s disputes under the enterprise agreement are determined, the MFB is not be able to take any further steps in current disciplinary proceedings against the employee in so far as such steps might involve the termination or proposed termination of his employment.
The case doesn’t create a general precedent for the FWC getting involved in an employer’s disciplinary process. It is quite a narrow case about seeking to reserve the status quo whilst a dispute process commenced under an enterprise agreement is in progress. However, this case is interesting in that it demonstrates how an employee might seek relief in a dispute about whether the employer is following a disciplinary or investigation policy set out in an enterprise agreement.
This case is about a prescriptive disciplinary process in a public-service context. However, it serves as a reminder about the potential for “process” disputes when constructing detailed and complex disciplinary processes. Where these processes are housed in enterprise agreements, failure to comply with a process may enliven separate dispute resolution process that – if unresolved – may give rise to applications as in this case to halt a process.
United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board  FWC 3263