Contributions to this article also by Nathan Day, Law Clerk
In Brief
In an extraordinary decision, Fair Work Australia (FWA) has found an unfair dismissal despite the employer proving a valid reason for dismissal and compliance with the procedural justice requirements. In a further twist, the employee was left without a remedy.
Mark Notman v Neway Transport [2011] FWA 5162
Mark Notman (Notman) was employed by Neway Transport (the Employer) for ten years. Following an investigation in which it was alleged that Notman urinated in front of a female employee, the Employer terminated Notman and gave him four weeks pay in lieu of notice.
Later evidence revealed that Notman did not in fact urinate in front of the female cleaner, but rather entered the toilet whilst the female cleaner was cleaning and started to unzip his trousers as he stepped over her cleaning equipment.
Notman lodged an unfair dismissal claim with FWA.
First Issue – Was there a valid reason for dismissal?
As has been previously emphasised in earlier articles [insert link to Valid reason for dismissal the key to defending unfair dismissal claims], the primary consideration in an unfair dismissal claim concerns whether there was a valid reason for the dismissal.
Commissioner Bissett found that Notman's actions in starting to unzip his trousers in front of the female cleaner showed a total disregard for her and left her feeling humiliated. His actions also contravened the Employer's policies on sexual harassment, workplace harassment and ethical standards.
Accordingly, Commissioner Bissett found that there was a valid reason for dismissal.
Second Issue – Was Notman afforded procedural justice by the Employer?
After establishing a valid reason for dismissal, the second issue in an unfair dismissal claim concerns whether the employer has afforded procedural justice to the employee by notifying the employee of the reason and providing the employee with an opportunity to respond.
Commissioner Bissett found that the Employer had afforded Notman with procedural justice by asking for an explanation to the allegation, inviting him to a meeting (which he did not attend), considering Notman's written statement and inviting him to a further meeting which he further declined to attend. His Honour noted that an employee cannot decline invitations to meet with the employer and then complain that he was denied procedural justice.
Third Issue – Was the dismissal unfair?
Generally, when there is a valid reason for dismissal and compliance with the procedural justice requirements, there is scant basis for a successful unfair dismissal claim. However, Commissioner Bissett interestingly found that the dismissal was unfair on the basis of the employee's contrition and the disproportionate response of the employer. In other words, his Honour found that the penalty of termination was harsh in response to the misconduct.
The finding, however, leaves open the questions:
- Was there really a valid reason for dismissal if it was later found that the penalty of termination was too harsh?
- Was it really the case that there was not a valid reason for dismissal in the first place?
No entitlement to a remedy because of misconduct
Notwithstanding the finding that the dismissal was unfair, Commissioner Bissett refused to award compensation to Notman because of his misconduct. Further, it was found that his actions were the reason for his termination and he had humiliated and caused distress to the female cleaner.
Significance of the decision for employers
This decision provides a timely reminder to employers that although it may appear that they have a valid reason for dismissal, they need to consider whether dismissing an employee who has committed some form of misconduct is an appropriate response. Nonetheless, employers can take comfort from the position taken by Commissioner Bissett in denying compensation in full on the basis of the employee's misconduct. However, it cannot be guaranteed that a FWA member will take such a strict approach in future cases concerning employee misconduct.
For further information please contact:
Warwick Ryan, Partner and Nathan Day, Law Clerk
Phone: + 61 2 9233 5544
Email: wpr@swaab.com.au
Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.
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