Unfair to Expect Employers not to Form View

BHP Coal Pty Ltd T/A BMA v Schmidt [2016] FWCFB 72 (5 January 2016)

Employers cannot be expected to remain absolutely neutral in their approach to dealing with serious misconduct of an employee, according to a full bench of the Fair Work Commission, and forming a view beforehand is not automatically fatal to the fairness of a dismissal.

The case was an appeal by an employer who had sacked an employee for a serious safety breach, and it wasn’t the first time this employee had come under notice for safety violations. At first instance, the Commissioner took the view that the employer had pre-determined the outcome once it had conducted its investigation. She held that the company was going to sack the worker, come what may.

But the full bench disagreed, saying the evidence was clear that the investigation was thorough, the employee was well aware of what was happening and he did have an opportunity to respond. There was no basis for the Commissioner to find that the employee’s explanation could not have changed the outcome.

The full bench focussed on the process the employer adopted and made the point that “When an investigation reveals inappropriate conduct on the part of the employee it would be usual and proper for an employer to form a view about the significance of the findings to possible disciplinary action against those responsible”.

And it went on to say “if serious misconduct is evident from the investigation, an employer cannot be expected to have no leanings or inclinations as to the likely sanction against the employee.”.

Many employers believe that if they indicate they have a strongly held view about a dismissal before they actually dismiss the employee then somehow they will have acted unfairly. This decision lays that bare.