Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Not given an opportunity to respond to the allegations against you leads to unfair dismissal

A full bench of the Fair Work Commission has reversed a decision that a boilermaker was fairly dismissed for using an unsafe method to cut a steel plate (The boilermaker had suspended the steel plate from a crane, rather than laying it out horizontally, in order to cut it). The full bench found that he was not given sufficient opportunity to respond to allegations about his conduct or to attend his employer’s re-enactment of the incident.

Fair-work-commission

Fair-work-commission

In Haigh v Bradken Resources Pty Ltd [2013] FWCFB 2918 (28 June 2013), Deputy President McCarthy and Commissioners Hampton and Cloghan agreed with Commissioner Williams that there was a valid reason for Bradken Resources Pty Ltd to terminate the boilermaker’s employment, but said the Company had not given him a proper explanation of the accusations against him.  As part of its investigation, the Company conducted a re-enactment of the incident, but did not invite the boilermaker to attend.

The full bench accepted that the Company had explained “a form of the allegations” to him at a meeting the day after the incident, but said he had disputed the account and was in an agitated state. The full bench said the Company “seemed to recognise the state he was in and purported to give him an opportunity to respond in writing to the allegations… However the letter sent to him was poorly framed and merely stated that he had been involved in the ‘cutting of plate in a suspended condition’. He disputed that, primarily on the basis that the plate was not ‘suspended’. Following the [worker’s] response without any further discussion or involvement [his] employment was terminated.” The bench noted the Company had no specific rules or policies for the cutting of steel plates. In those circumstances, where there is a dispute about standard practice, “an unsafe act can often only be determined by reliance on individual assessments and opinions about that act“. “The importance of providing a proper and precise explanation to the employee accused of unsafe conduct in these circumstances is of significant importance in order that the employee can truly be regarded as having had an opportunity to respond to the accusation,” the full bench said. The bench also took into account Bradken’s failure to invite the boilermaker to the re-enactment. The bench decided to rehear the case itself, and concluded “on balance” that the dismissal was harsh. It said the boilermaker’s experience and good record were factors in his favour, but also weighed against him.

Lessons to Employer:

  • Ensure that you clearly provide to the employee, the allegations in relation to his/her conduct, and allow the employee an opportunity to respond to those allegations.
  • Then make a decision as to whether or not to dismiss the employee.

Brooke Pendlebury
Saturday, July 20, 2013
Dismissal, News, Workplace Safety