In Steven Biffin v XL Express Pty Ltd T/A XL Express [2017] FWC 3702, the Fair Work Commission (Commission) found that a depot manager at an Australian courier company was unfairly dismissed after he was accused of being responsible for the breach of a worldwide embargo on J.K. Rowling’s new book Fantastic Beasts and Where to Find Them, as well as being accused of workplace bullying.

Background A significant part of XL Express Pty Ltd’s (the Courier Company) business is the delivery of new releases and embargoed publications to retail outlets. Such embargo deliveries are subject to a Delivery Embargo Agreement which requires the carrier to indemnify the distributor against all the losses suffered as a consequence of the early release of copyright work before the worldwide “on-sale time”.

Mr Steven Biffin (the Employee) had been employed in a management capacity since May 2008 and had been employed with the Courier Company for a total of 24 years.

In a meeting in November 2016, the Employee was informed by the human resources manager that his employment was terminated immediately due to serious misconduct, for the following reasons:

  • Breaching company procedure by delivering a consignment of embargoed JK Rowling books one day early, which was said to have caused a serious and imminent risk to the reputation, viability or profitability of the Courier Company’s business
  • Bullying allegations, following the death of another employee who named a number of managers in a note left before his death. This triggered an Workplace Health and Safety Queensland (WHSQ) investigation in relation to the workplace generally
  • Wrongly denying being provided with training about workplace bullying in an interview with a WHSQ Investigator.

The Employee applied for an unfair dismissal remedy.

The Commission’s decision The Commission found that the Employee’s dismissal was unfair, and ordered that the Courier Company pay the employee his wages in the amount of $48,432.69 and superannuation in the amount of $6,992.13.

The Commission provided that the reason for dismissing an employee must not be capricious, fanciful, spiteful or prejudiced, and the conduct of the employee must be so serious that it goes to the heart of the employment relationship.

In relation to the misconduct in the early delivering of the JK Rowling books, the Commission accepted that this breach of procedure was a serious matter and that the Employee engaged in misconduct as he was responsible for the delivery. However in reviewing the evidence, the Commission found that the Employee was not entirely at fault. On balance, the Commission decided the dismissal of the Employee to be harsh as it was disproportionate to his misconduct, especially in light of the otherwise unblemished work tenure of the employee, who had worked for the Courier Company for the period of 24 years. It was stated that the more appropriate course for the Courier Company to take would have been to issue the Employee with a warning.

In respect to the bullying allegations, the Commission did not consider that the bullying allegations constituted a sound or well-founded reason for dismissal, as the Commission was not satisfied that there was a proper basis for the company to conclude that the Employee was guilty of bullying. The Commission stated that to assert that the Employee was a bully was a serious allegation and should have been based on cogent evidence. There was no such evidence in these circumstances as the Courier Company had no documentation and called no evidence from WHSQ to support the allegations against the Employee, nor did the Courier Company engage in any of its own investigations regarding the Employee’s conduct.

The Commission considered that procedural fairness is a fundamental principle underpinning unfair dismissal remedies, which, in this case could not be abrogated by the Courier Company accepting a verbal report from a WHSQ Inspector without any evidence upon which that report was based. The Commission described the Courier Company as being a “large and well-resourced employer with a dedicated human resources manager and in-house legal counsel.” On this basis, it was considered by the Commission that the Courier Company should have conducted its own investigations of the allegations rather than simply accepting the WHSQ Investigator’s refusal to provide a report.

Additionally, the Commission did not accept that the employee was given an opportunity to respond to the reasons for his dismissal. Rather, the allegations were presented to the employee on the basis that they were substantiated and that a decision had already been made to terminate employment. What this means for your business There are a few key take away messages from this case.

  • Firstly, if an employee has engaged in misconduct, the employer must consider whether the employee’s conduct was of sufficient gravity or seriousness to justify dismissal. A minor failing or trivial misdemeanour on the part of an employee will not constitute a valid reason for dismissal. The decision also highlights the care that must be taken towards dismissing long standing employees who otherwise have unblemished work tenure
  • Secondly, while bullying behaviour is a valid reason for dismissal, if an employer is minded to dismiss an employee on this basis proper investigations should be undertaken to establish that the allegations are substantiated. Cogent evidence should be collected including when the bullying occurred, what it involved, and who was bullied
  • Thirdly, the case highlights the importance of engaging in procedural fairness when considering dismissing employees. Employers should be mindful of giving the employee a proper opportunity to respond to allegations before the decision to dismiss is made.