FCW Lawyers

Employee compensated for procedural errors in termination despite engaging in serious misconduct

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Employee compensated for procedural errors in termination despite engaging in serious misconduct

2 October 2020 by Nes Demir

Mr Jones was known to engage in blunt and curt exchanges with colleagues. On one occasion, he was involved in a heated exchange involving aggressive insults and profanities with his supervisor. He was relocated to another factory but not issued with any formal warnings.

After his supervisor directed him to move his motor vehicle out of a prohibited area, Mr Jones sought and obtained approval from a representative of the factory to leave it parked there. The Operations Manager sought to discuss his actions and the conversation degenerated into an unpleasant exchange involving aggressive and abusive language. Mr Jones called the Operations Manager a “f**king smart arse” and hung up the telephone. When the Operations Manager phoned him back, Mr Jones admitted he deliberately hung up the call, pursued to engage in an expletive laden tirade then hung up again.

Mr Jones received a termination letter for serious misconduct via email later that day. Not seeing the email, he returned to work the following day, where he was advised of his dismissal and instructed to pack up and leave. He received his entitlements and one weeks’ remuneration.

The Commission held the dismissal was harsh and unjust. While Mr Jones’ behaviour amounted to serious misconduct and the reason for dismissal was valid, there were significant procedural errors in the manner the dismissal was carried out meaning Mr Jones was denied natural justice. Mr Jones was awarded 1-week compensation.

See Jones v Karisma Joinery Pty Ltd [2020] FWC 5051

Lessons:

  1. In some workplaces, robust communications involving the use of profanities and insults is common.  Where such communications are common and tolerated by the employer, they cannot be later deemed as serious misconduct warranting summary dismissal. However, there is a line between a generally acceptable levels of vulgar language and where it is used in an aggressive and insulting manner, as happened in Mr Jones’ behaviour in this case. In particular, Mr Jones’ calling his supervisor a “f**king smart arse” and hanging up on him twice, strained the employment relationship to breaking point.
  2. Where there is significant breaches of procedural fairness, but the behaviour is serious misconduct, the remedy will only be compensation for the time it would have taken to have done the procedural fairness correctly.
  3. Communication of dismissal by electronic means such as email or text messages is not acceptable, especially where there is no procedural fairness. After procedural fairness is given, there may be some compelling reason like extensive distance or genuine safety concern to notify electronically. Otherwise  advice of dismissal should be conveyed in person.
  4. All employees are entitled to an opportunity to provide an explanation of their behaviour including any mitigating factors that the employer should take into account before deciding to dismiss the employee. Similarly, all employees should be provided with the opportunity to have a support person present in these discussions.

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