Contributions to this article also by Nathan
Day, Law Clerk
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  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
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
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
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.
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
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guide to the subject matter. Specialist advice should be sought
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