A recent case at the Fair Work Commission has again highlighted the importance of following a clear, compliant and fair termination process, even when the situation includes stunning and clear breaches.  With a positive drug test and the covering of an in vehicle camera being found to be valid reasons for termination, but the overall termination being labelled unfair this case has learnings for all businesses.

Case Review

In this case the employee, a labour hire worker at a mine site, disclosed he has been prescribed a sleeping pill along with other medications.  In consultation with the employee a Medical Management Plan was formulated which included direction to NOT take the sleeping pill during periods of assignment to work, which the employee agreed to.

Following an incident where the employee is said to have tampered with a safety camera that was fitted in the vehicle by covering it up, the employee was drug tested as part of the incident response, where he returned a positive for temazepam, the sleeping pill he was directed not to take.

This positive drug test result was the second positive in the month for the employee.

Following the receipt of the second positive drug test the employee was terminated in a two minute meeting in the car park.

When he lodged the unfair dismissal claim the employee stated that he covered the camera so that he could have some privacy while he gargled mouthwash for his mouth ulcers while he was driving.

Deputy President Roberts noted that the employee knowingly tampered with the camera, which had been clearly communicated as misconduct and that such action provided a valid reason for termination.

DP Roberts went further and outlined that the positive drug tests also amounted to a clear breach and a valid reason for termination.

What made this termination unfair, according to DP Roberts, was the inadequate process.  The lack of notice provided to the employee of the meeting, the rushed and coursory nature of the meeting itself and the failure to explore any possible mitigating factors made the dismissal unfair.

DP Roberts noted that the employee “should have been allowed to offer his explanation in relation to the taking of prescribed medication which he had previously disclosed to the company” and “had that occured, those matters could have been given proper consideration.  Instead, the employee was presented with a fait accompli in the car park”.

The business was ordered to pay compensation in the amount of 8 weeks pay totaling $21n735.

Learnings for All Business

“Businesses should take this case as yet another reminder that a ‘fair’ dismissal is one that has two elements; a valid reason and a valid process”, explains ACAPMAs Elisha Radwanowski.

“It does not make sense to some people but even very serious actions that all people can agree is a valid reason for termination, such as an unprompted or unprovoked punching the boss in the face, can still be found to be harsh or unfair if the required process was not followed”, continues Elisha.

“All employees have procedural rights, even if they have engaged in gross misconduct.  They are entitled to; understand the business expectations and the likely outcome of failing to meet the expectations; understand the breaches; have an opportunity to respond to the breaches BEFORE a final decision is made and; to have a support person attend the meetings with them if they choose”, explained Elisha.

“It is this last element that this case clearly breached.  By surprising the employee with the meeting in which the termination occurred the business denied the employee notice of the meeting and thus the opportunity to arrange for a support person to attend the meeting with them”, continued Elisha.

“This is not an uncommon element for dismissals to be found ‘harsh’ over.  What is different in this case is the very clear communication from the Deputy President around what the business should have done to render the dismissal fair”, notes Elisha.

The Deputy President outlined that the business “could have provided better steps to prevent issues of procedural fairness such as sending an email with written allegations, notifying him that it would consider disciplinary action, including dismissal, and asking him to attend a meeting with a support person” and confirming that “if any of these steps were demonstrated, the dismissal would have been less harsh”.

More on Performance Management from ACAPMA

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Here to Help

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

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