Failure to stand employee down results in compensation

16 November, 2016

An employer’s failure to stand an employee down during an investigation has resulted in the dismissed employee being awarded compensation, in spite of the employer having a valid reason for termination.

The employee had worked for the organisation for almost 38 years with an unblemished employment record and regularly acted as a representative for colleagues with workplace related issues. However, in 2014 his employer became aware that he had started to accept payment for his services.

Once aware of the arrangement, the area manager met with the employee to explain that it was viewed as a conflict of interest and discussed other concerns that the employer had regarding his conduct. The employee did not accept that his role as a paid representative amounted to a conflict of interest and continued to provide his services. Subsequently, the employer notified the employee that he was required to attend a meeting to discuss the alleged unacceptable behaviour.

The employer launched an investigation in to the alleged breach of the employer’s code of ethics which concluded with a recommendation for dismissal. The employee was provided with an opportunity to appeal to his manager but chose not to do so. He was then dismissed for ‘serious and wilful misconduct’ effective that day. He did not receive payment in lieu of notice.

Commissioner Cambridge determined that under s. 387(a) of the Fair Work Act 2009 (Cth) (FW Act) there was a valid reason for dismissal. However, Cambridge C pointed out one ‘glaring’ error under s.387(g) that the employer permitted the employee to continue working during the investigation subsequently depriving the employer of the capacity to dismiss him without notice.

 The employee was entitled to a remedy for unfair dismissal and awarded five weeks’ compensation of $4,514. This decision is a reminder to employers to provide full procedural fairness where possible.

Quentin Cook v Australian Postal Corporation t/a Australia Post [2016] FWC 5692 (18 August 2016)