HR Managers in the Firing Line Again

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Kirkbright v K&S Freighters Pty Ltd [2016] FWC 1555 (24 March 2016)

Another example of the tribunals and courts finding fault with HR managers has seen an employee found to be unfairly dismissed, despite his obvious misconduct including unauthorised use of a fuel card, failure to document freight consignments and abusive behaviour towards management when he was confronted with these issues.

The evidence clearly showed the employee was in the wrong and then became abusive and belligerent when he was interviewed prior to his dismissal. But Fair Work Commission has relied on the behaviour of the HR manager (who had effectively made the decision to sack the employee regardless of the outcome of the interview), to find fault with the employer’s processes.

The FWC criticised the HR manager for not foreseeing that the employee would be abusive and further criticised the HR manager for not coaching the operations manager in how to conduct the investigation interview on this assumption.

Nothing in the employee’s explanations of the affair stacked up, and the FWC found that to be the case and found there was a valid reason for the dismissal. The FWC preferred the evidence of the company representatives over the employees when it came to the employee’s claims of ‘custom and practice’.

However the FWC also was critical of the fact that despite the nature of the misconduct, given his long unblemished career with the company, the employer made no effort to determine a lesser penalty than dismissal.

It is apparent from this decision that HR managers must take considerable care to ensure that whoever in the organisation is to interview an employee in cases where dismissal is a possible outcome, does not allow the meeting to deteriorate into a shouting match, nor that there be any evidence that the dismissal was a foregone conclusion.

It also reinforces the view that enterprise agreements should contain alternative disciplinary measures such as suspensions, deferral of pay rises or loss of access to other EA benefits, to give employers wriggle-room in cases like these.