Fair (go) dismissal

Two unfair dismissal cases recently decided by the Australian Industrial Relations Commission highlight the importance for employers of keeping your approach to disciplining employee misconduct straightforward – and reminds us that sometimes the “fair go all round” is a matter of common sense.

The first case concerns two employees of Coles supermarkets who were working in one of the company’s large distribution centres. They were terminated after they were each found to have taken a single chocolate bar from a third employee, who obtained the chocolate from an open package.

In separate decisions, the Commission found that both employees probably knew that the chocolate bars were improperly removed. They did not bear the “check seal” that indicated they had been paid for in accordance with company policy.

But that wasn’t the reason for finding that termination of his employment was justified.

During the investigation by the employer, both employees gave inconsistent accounts of the incident. It was clear to the Commission that they had not been open and honest with the employer in the course of the investigation, and it was this lack of complete honesty that justified dismissal.

In another case, the “fair go all round” was applied to enable an employee to be re-instated, despite the Commission finding that the employee had been involved in a serious breach of the employer’s safety policies.

The employee was 59 years of age and had been employed by the company for 25 years. He had an unblemished safety record.

Perhaps of more significance for the employer was the finding by the Commission that the company’s safety policy was difficult to understand and had not been applied consistently, although the company gave evidence that it had a zero tolerance policy in relation to safety breaches.

Evidence was given of other cases of serious safety breaches at the plant, which did not result in these workers’ employment being terminated.

The Commission went further and found that the breach of the safety procedure was a valid reason for the termination. However in the circumstances of the case, and the treatment of previous breaches, termination of employment was found to be a harsh decision.

The lessons for employers:

• Company policies should be clear, readily understood, clearly communicated to employees and implemented consistently.
• Breaches of policy may not be enough to justify termination of employment, sometimes even if they are serious breaches. This is particularly so in cases where an employee has an unblemished record.
• Inconsistent application of policies by employers is poison to an employer’s ability to rely on those policies.
• In such cases, a “fair go all round” may dictate that the employee be issued with a warning or some other form of discipline less serious than termination of employment.
• The AIRC and the courts have little tolerance for employees who are not completely honest with their employer, particularly where the employee is aware that an investigation is being conducted and that their co-operation is required.

Peter Vitale is the principal of CCI Victoria Legal