Unfair dismissal case highlights why employees must be treated consistently

Fair Work Australia’s decision to declare the sacking of a manager who admitted taking money was unreasonable highlights the importance of conducting proper investigations into misconduct and treating all employees consistently.

The case involved Gary Bermingham and his former employer Kings Transport & Logistics. He was terminated in August 2009 after what Fair Work Australia senior deputy president O’Callaghan called a “cursory” investigation into alleged theft.

“At the commencement of the meeting Mr Bermingham advised that he was aware of the allegation of fraudulent behaviour. He returned $100 in an envelope, which had only just been given to him by a subordinate employee and admitted that it had been wrongly taken from Kings. Mr Bermingham’s employment was subsequently terminated,” the tribunal said.

But while O’Callaghan found that Bermingham has stolen money from his employer, and the dismissal could not be considered unjust or harsh, he did find that the dismissal was unreasonable on the ground that “the substantial inadequacies associated with the investigation and the inequities which this invited”.

Industrial relations lawyer Peter Vitale from CCI Lawyers says the key issues in the finding are the processes by which the matter was investigated and handled and the inconsistent treatment of other employees implicated in the matter.

Vitale says the decision refers specifically to the fact that Bermingham was not give a chance to have allegations about his misconduct put to him and was also not advised that he could have a support person present and the meeting where his termination was discussed.

Even more damning for the company was its handling of other employees in the matter.

“The only significant element of unfairness such that there is real doubt about whether Mr Bermingham’s actions warranted termination of employment at that time relates to the fact that the other two employees involved in this behaviour were only warned, one was subsequently promoted,” O’Callaghan wrote in his decision.

“The evidence before me indicates that Kings has demonstrated an entirely inconsistent approach to the employees involved in this behaviour. This could only be described as managerial incompetence.”

Vitale says the key lesson for employers who find themselves investigating these matters is to conduct a proper, documented process.

“Part of your processes should be that you go into a meeting with an open mind as to what the outcome might be, and put the allegations to the employee. Also advise the person they could have a support person. It’s the safer course and it raises less issues.”

He also says employers need to be aware that they should treat employees consistently. Not only is it good business practice, but failure to do so can leave bosses open to trouble down the track.