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Legal Case​​​

Dismissal procedures found wanting

Dismissing an employee is one of the least favourite tasks of managers and HR professionals everywhere. Being ordered to take them back and pay them for lost wages is not what you want to see happen next. 

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Toll Transport dismissed one of its employees recently for “racist, sectarian and inappropriate” comments to a co-worker, which, it believed, demonstrated a total disregard for the company’s policies and procedures and code of conduct. 

Represented by his union, the employee successfully argued in the Fair Work Commission that his dismissal was unfair. 

The matter had been investigated, the employee was notified and given an opportunity to reply. Proper procedures were followed. He denied the allegation and there was plenty conflicting evidence, including complaints against the co-worker he had offended for similar behaviour towards  other employees. The Commission, however, was satisfied that the hurtful and distressing remarks were made and that they constituted a valid reason to dismiss the employee. 

So what went wrong? The first thing was that the company failed to take action against the co-worker with respect to his behaviour towards a third employee. An important element of fairness in relation to workplace disputes is consistency in the way that all parties are treated. Another problem was the admission from management that the termination was at least in part because the employee had “called in the union”. 

The employee had previously received two informal, verbal warnings about his behaviour and the Fair Work Commission thought that, at this stage, a final warning would have been a fair outcome. He said that the co-worker should also get a final warning. The employee was reinstated but the amount of back pay he received was reduced from 16 to seven weeks, taking into account his misconduct.            ​
The Commissioner also commented on the hostile culture at this worksite. He said that, far from accepting the different faiths and cultures to be found in their multi-cultural workplace, employees used “intimidation, victimisation and harassment” to achieve dominance for their own particular group. He described it as “dangerous, divisive and unproductive”.  Johnpulle v Toll Holdings Ltd {2015] FWC 3830 (17 June 2015)

All employers should be able to demonstrate that they have taken “all reasonable steps” to prevent discrimination and harassment within their workplace. This includes fair grievance handling. Help is available from one of the Anti-Discrimination Board’s Senior Workplace Consultants who run customised policy development, training and consultancy services for employers and service providers seeking to enjoy the many benefits associated with a workplace free from discrimination, harassment and bullying.”​

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