Thinking | 31 March 2016

Fair Work Commission unfair dismissal decision – appeal successful

In a recent unfair dismissal decision, the Full Bench of the Fair Work Commission has set out what is expected of employers when conducting investigations into disciplinary matters.

The decision related to an employee, dismissed after he failed to notify his supervisor that he had damaged plant equipment. The employee subsequently brought an unfair dismissal claim against the employer.

The employer followed strict procedure in deciding to terminate the employee’s employment, including providing him with an opportunity to respond in writing to the investigation and show cause as to why his employment should not be terminated.

At first instance, the dismissal was found to be unfair. The Commissioner held that the employer had predetermined to dismiss the employees, and did not have proper regard to his written response. The Commissioner was critical of the employer for failing to advise the employee that his disciplinary record (he was on his third warning) would be considered when determining whether or not to terminate his employment.

The employer successfully appealed to the Full Bench. The Full Bench held that the dismissal was fair and rejected the Commissioner’s concerns. The Full Bench was satisfied that Mr Schmidt was given input into the investigation and that his responses were considered by the employer.

The Full Bench clarified that when conducting investigations the obligation on an employer is to:

  • ensure the employee is aware of the precise nature of the concerns about their conduct or performance; and
  • give them a full and genuine opportunity to respond to these concerns.

The Full Bench went on to say that:

“If serious misconduct is evident from the investigation, an employer cannot be expected to have no leanings or inclinations as to the likely sanction against the employee”.

In summary, it is not improper for an employer to have an inclination as to appropriate disciplinary action, provided that an investigation has concluded that serious misconduct occurred.

An employer must be able to demonstrate that it gave genuine consideration to any material provided by an employee in their defence.

In this case, the employer was able to demonstrate this by providing a witness statement which chronologically set out the steps taken leading to the dismissal – including the consideration given to the employee’s responses.


Mark’s practice encompasses both litigious and non-litigious applications of employment and industrial relations law...

Iona has experience in assisting clients with both litigious and non-litigious employment and workplace relations matters.

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