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Perspective

Heat of the moment comments not valid reason for dismissal

In determining whether a dismissal was unfair, the FWC will consider whether there was a valid reason for dismissal and whether the employee was notified of that reason and given an opportunity to respond.

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A valid reason for dismissal is one which is ‘sound, defensible or well founded’ on an objective analysis of the relevant facts. This includes consideration of the employee’s conduct and the role of the employer and its role in the employee’s misconduct which led to dismissal.

In Carol Whitfield v Primo Foods Pty Ltd [2021] FWC 2729, Primo Foods was understaffed and did not have sufficient equipment for Ms Whitfield to carry out her duties. The caused Ms Whitfield significant stress and led to her saying she felt like knocking a fellow employee off her perch.

The FWC noted the colloquial phrase is generally understood as a reference to causing someone to lose a sense of superiority or authority over others, rather than to actually hitting or threatening to hit someone. In light of the circumstances, the FWC found Ms Whitfield’s statement was merely an expression of frustration and anger which, although unacceptable, did not constitute serious misconduct nor a valid reason for dismissal.

The procedure used to conclude the dismissal was also deficient and would have led to a finding of unfairness regardless of the validity of the reason for dismissal. Ms Whitfield was provided with a show cause letter listing allegations against her, but this made no mention of her disciplinary history which Primo Foods later sought to rely on in its dismissal of her employment.

Lessons

  • A dismissal must be proportionate to the gravity of the employee’s misconduct. In most cases, heat of the moment comments or expressions of frustrations would not warrant dismissal, especially where it is a ‘single, foolish act’. Employers should consider the surrounding circumstances and the employee’s intentions in reaching a determination as to whether it amounts to misconduct or serious misconduct.
  • An employee’s prior disciplinary history can only be a factor in terminating their employment if it is of the same nature of the misconduct in question and within a reasonably close timeframe. Where this is the case, it must be put to the employee for response alongside the allegations of misconduct in question in a show cause letter.

Written by Nes Demir

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Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas or Kim McLagan.

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