When the Commission deems a dismissal as "harsh"

Written by Jaaden Morrall, Senior Workforce Advisor

Deciding whether an employee’s conduct warrants dismissal can be a complicated task for Councils.

Before deciding to terminate an employee make sure you can answer the following questions with a resounding ‘YES’

1. Valid Reason
   Is there a valid reason for dismissal? Did the employee do something contrary to policy or legislation?
2. Procedurally Fair
   Have you had a fair process including the employee being notified of the conduct and having a chance to respond?
3. Is it harsh?
   Is dismissal the right decision considering all the circumstances, taking into account the previous record of the employee and their individual circumstances - or could it be deemed as harsh?

The case of Queensland Rail employee termination found by the Commission to be "harsh".

In a recent Fair Work Commission case, a Queensland Rail employee was reinstated after making an unfair dismissal application. The Commission agreed that his dismissal was harsh.

Upon providing a required random breath test at work, he blew .037 in a measure of blood alcohol concentration. He admitted this was due to his consuming half a bottle of Johnnie Walker the night before, approximately 11 standard drinks, between the hours of 3.30pm and 9.30pm.

Queensland Rail has a zero-tolerance drug and alcohol policy and they made the decision to terminate his employment.

The Applicant had an unblemished employment record of close to 39 years. He was 63 and had limited literacy and technology skills. It was found that he would have difficulty securing alternative employment, and would lose his housing which was provided by Queensland Rail.

To make matters worse his wife was receiving cancer treatment and was having to work additional overtime hours to support the family following the loss of the Applicant’s wage.

Commissioner Simpson found that the dismissal was harsh, and this made it unfair.  The worker was reinstated with continuity of service and 50% back pay.

What can we learn from this case?

• If your organisation has policies with ‘zero tolerance’ clauses, ensure that there is flexibility so that dismissal is not the only option, such as formal warnings. In the Queensland Rail case, a final warning would have been a better disciplinary outcome and would have saved Queensland Rail a lot of money in legal fees and back pay, plus eliminated considerable stress for the employee.
• Consider the humanity of the disciplinary processes and take into account the individual circumstances of your employee before making decisions based on the strict application of policies and procedures. Sometimes people deserve another chance, and recruitment and training new staff is expensive! Queensland Rail could have conducted a workplace investigation to ascertain more details from the Applicant to understand the situation prior to making any disciplinary action.
• Carefully consider and take into account the employee’s response during the workplace investigation. If they are genuinely remorseful for their actions and/or have a previously good record, the organisation should consider this before taking any disciplinary action.

Termination of employees can be a complicated process and as we can learn from the above QR case study, it may become costly when diligence and consideration of employee circumstances haven’t occurred. We’re here to help you through that process. You can contact the team at Peak Legal prior to proceeding with any decision of termination of employment, despite having well-drafted policies. Contact us on 07 3000 2148 or peaklegal@wearepeak.com.au.

For those Councils who have subscribed to the HR Assist platform, you will see further articles like this one, providing a summary of key case law and practical guidance on how to navigate these important employment issues.