Employee Reinstated After Dismissal for Misconduct 

by Oct 6, 2023All Posts, Fair Work, Human Resources

Earlier this year a machine operator from an Australian Company was terminated after ‘supposed’ substantiated grounds of misconduct. The employee then filed an ‘unfair dismissal claim’ to the Fair Work Commission (FWC) which instigated an investigation to determine whether the actions of the employer had followed appropriate legislation and policy, within a fair and respectful process. It was found by the FWC that no evidence existed to support the misconduct, therefore not substantiated, concluding that this was not a valid reason for dismissal and saw the employee reinstated.  

The employer determined misconduct on the grounds that the employee had directly breached a workplace procedure. This was substantiated on the claims of a supervisor’s observation and a statement of the employee’s historical poor patterns of workplace behaviour, alongside the guilty admission and apology received from the employee. Reading this, it sounds like the employer has a strong case, however…   

Upon review the Fair Work Commission had the employee reinstated due to the lack of evidence and the poor investigative process that took place. They found that although the supervisor questioned the employee of breaching a workplace procedure, no one checked or investigated to see that this had indeed happened. Not only this, but another employee had made a formal statement confirming that the employee HAD followed the correct workplace procedure. Regardless of this information, the employer executed termination on the grounds of serious misconduct, stating that the employee had previously demonstrated disregard for procedures and therefore was likely to have been guilty of doing so this time.   

Do not allow your business to be exposed to the potential stress and reputational burden that accompanies a Fair Work claim and investigation. Set your policies and procedures up to protect you, ensuring that they comply with current legislation and provide a consistent approach to workplace problems to prevent situations like the one discussed.

Dependent upon your situation our specialists can support you with expert advice that will allow you to appropriately manage your situation. In the circumstance of an allegation made against an employee, an investigation will need to be conducted, in which we can equip you with the required guidance, checklists, and templates to action this independently, or we can work with you to initiate the investigation process. Alternatively, we can do this for you, stepping in as your HR and WHS department, as the result of a workplace investigation and employee termination will always lead to a finalised determination, requiring further employer action AND follow up.  

As you can identify in reading this, it is an extremely complex and time-consuming process, which is why the AHR team exists, as we are here to solve and reduce your workplace problems. If you have concerns about an employee or think that misconduct may be occurring, then we encourage you to contact the AHR team on 1800 577 515 for a free consultation with one of our HR specialists. 

For more information see our articles on Misconduct and WHS Investigations.

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