On 18 October 2018, the employee did a number of burnouts on a forklift machine while a colleague recorded them on his mobile phone. At one stage, the employee poured thinner solution onto the concrete floor as a lubricant to enhance the burnouts he performed with the forklift, and also smashed glass bottles onto the concrete floor.
That afternoon, the employee confessed his responsibility for the incident to the business’ Production Manager.
On 20 October 2018, the Production Manager came into possession of the video on the colleagues mobile phone and forwarded it to the employee’s supervisor. The Production Manager came to the view that the employee’s behaviour, as shown in the video, constituted serious misconduct.
As a result, on 22 October 2018, the employee was summoned to a meeting and advised by the Production Manager of his dismissal.
The FWC also noted that the employee wasn’t afforded a support person in the discussion about his misconduct, supplied with detailed written reasons for the dismissal, nor given an opportunity to respond to any of the allegations that formed the basis of his dismissal.
Despite these shortcomings, the FWC recognised the significance of the employee’s misconduct, which Commissioner Cambridge described as “…one of the most egregious acts of gross and wilful misconduct that I have witnessed in more than two decades of arbitrating unfair dismissal claims.”
On this basis, the FWC declined to find any unfairness in the employee’s dismissal with respect to any alleged procedural deficiencies in the employer’s investigative and disciplinary process, as to do so would have amounted to impliedly condoning the employee’s extraordinary level of misconduct.
While employers can take some comfort from this decision, it should be remembered that this case centred on gross misconduct that was captured on film. In other matters, for instance where the misconduct for which the employee has been terminated is based on testimonial evidence, it is likely that greater weight would be given to issues of procedural fairness, particularly in the context of investigating allegations of misconduct and offering the employee an opportunity of reply.
Where an employer is considering dismissing an employee, irrespective of whether gross misconduct is present or not, best practice therefore remains that human resources policies and procedures should be carefully followed in the investigation and termination process.
The Employment Team at McCabe Curwood can advise on how to best handle alleged employee misconduct, including how to carry out a proper investigation and minimise the risks associated with any subsequent termination of employment.