Compensation Overcomes Failure to Dot i’s

Soares v KDR Victoria Pty Ltd [2015] FWC 4472 (3 June 2015)

Although an employee was sacked without some of the procedural niceties being observed, the Fair Work Commission has nevertheless rejected his unfair dismissal claim.

The employee, a tram driver, was observed by a member of the public using his mobile phone while the tram he was driving was in motion. He denied the accusation when confronted by management, but when he was asked to produce his phone he advised it had been lost.

On further investigation, it transpired that the driver had form, with previous complaints about mobile phone use having been received. The company suspended the driver on full pay and, after further investigations, sacked him with a payment in lieu of notice. It was these monetary aspects which swayed FWC in the decision to uphold the sacking.

The company did not use its own HR department to conduct the matter and as a result, it failed to follow its own policy and the enterprise agreement in some aspects. Ordinarily, FWC would most likely find that, despite a valid reason for the sacking (using the phone), because of the procedural deficiencies, the dismissal was harsh, unjust and unreasonable.

On this occasion, the FWC decided the valid reason and the compensation paid outweighed the procedural shortcomings. While it would be foolhardy to rely on this approach in dealing with dismissals, it does demonstrate that the FWC will not always take a hard line on procedural fairness but can and does weigh the competing factors. It demonstrates that the argument is available; if compensation was paid at the time of the termination, even though things could have been handled better, the behaviour warranted the sack, so it should stand.