While a procedurally correct process, with an opportunity to respond, is best, the Fair Work Commission will not condone deliberate and unsafe conduct.
"He did what!". It's hard to believe, but with many unfair dismissal cases focusing on only procedural flaws, one recent case in the Fair Work Commission demonstrates that where employee conduct is "so extreme", even some procedural deficiencies will not make a dismissal unfair.
In Jackson Macumber v Ace Bottle Printers Pty Ltd  FWC 2059 (5 April 2019), the Fair Work Commission dismissed Mr Macumber's unfair dismissal proceedings after finding that his conduct was "so extreme that it does not warrant any further inquiry". The Commission found that there was no explanation or mitigation that could have avoided the dismissal.
While the decision should give some comfort to employers who must deal with extreme misconduct, it should not take this to mean that procedural fairness automatically can go by the wayside if an employer decides an employee's misconduct is serious.
What not to do when your supervisor is away…
One Thursday afternoon in October 2018, Mr Macumber realised that he and a co-worker were unsupervised. He seized the opportunity to do burnouts on a forklift, enhanced by thinner and smashed glass bottles as an accelerant and lubricant.
Mr Macumber's conduct was watched by his co-worker (who filmed it on his phone) and another. The next day the production manager noticed the skid marks, broken glass, and dirt and cleaned it, a task Mr Macumber offered to assist with. While they were cleaning, Mr Macumber blamed his co-worker for the burnout incident.
On Saturday the co-worker provided the video footage to the production manager, who, after watching it, decided that Mr Macumber's conduct was serious misconduct and he would be dismissed immediately.
On Monday, the production manager met with Mr Macumber and informed him that he was being dismissed from his employment immediately because of the burnout incident.
In lodging a claim for unfair dismissal, Mr Macumber argued that his dismissal was unfair because:
- while Mr Macumber's actions were dangerous, it was not the only unsafe practice on site; and
- the co-worker who filmed the incident was not punished.
"Extreme circumstances" meant the dismissal was fair
The Commission rejected Mr Macumber's claim. In finding that the employer’s findings of serious misconduct were "unequivocally established" by the video, Commissioner Cambridge determined that the employer's reason for dismissal was valid.
While the employer did not provide Mr Macumber with an opportunity to respond, in light of the "rather extreme circumstances" of the case, Commissioner Cambridge outlined that "there would, in reality, be no basis upon which the applicant could provide any conceivable response that could in any way justify or mitigate the misconduct displayed in the video of the forklift burnout incident". Similarly, Commissioner Cambridge found that as the employer had "irrefutable evidence of gross and wilful misconduct of such a nature and magnitude that it almost compelled dismissal, without any need for further inquiry", procedures involving support person assistance became unnecessary.
In acknowledging that inconsistent treatment of employees regarding dismissal can be a basis to find a dismissal harsh or unreasonable, Commission Cambridge found that inconsistency in this case was not a basis as Mr Macumber "committed one of the most egregious acts of gross and wilful misconduct that I have witnessed in more than two decades of arbitrating unfair dismissal claims".
As a result, the Commissioner found that while there could be criticism of the procedures undertaken, in light of Mr Macumber's conduct, this was not a basis to find unfairness.
The Fair Work Commission is not condoning knee-jerk dismissals
While the decision reflects a correct and sensible outcome, whether misconduct is so "extreme", or enough to outweigh procedural flaws, obviously would have to be considered on a case by case basis with the evidence available. In particular, if the misconduct is not captured on video and an employer is relying on witness testimony, further risks may arise.
While a procedurally correct process, with an opportunity to respond, is best, it reflects that the Commission will not condone deliberate and unsafe conduct.
However, any decision to dismiss an employee is properly considered and proper processes are followed – a decision to dismiss should not be a knee-jerk reaction, no matter the seriousness of the conduct.
To support fairness and defensibility, it is important that employers:
- follow employer policies and procedures;
- provide employees with an opportunity to respond to concerns;
- ensure requests for a support person are dealt with, including to allow a support person where appropriate;
- ·obtain advice and support from Human Resources;
- be clear regarding reasons for dismissal; and
- if support and advice is needed – obtain legal advice.