WORKER FIRED FOR NAPPING ON THE JOB WINS UNFAIR DISMISSAL DUE TO LACK OF PROCEDURAL FAIRNESSFebruary 23, 2023
A recent decision by Deputy President Gerard Boyce found an employee’s dismissal to be harsh, unjust and unreasonable even though he also found the employer had a valid reason to dismiss the worker after he was found napping on the job.
Last year on the 7th April Mr. Brett Steed who worked as a truck driver/yard hand for Active Crane Hire Pty Ltd lodged an unfair dismissal claim after he was terminated on the spot when his manager caught him having a nap in his truck. Mr. Steed’s argument was that he was resting in the truck to keep out of the bad weather. The Deputy President didn’t believe Mr. Steed’s evidence instead finding there was a valid reason for his dismissal, but Active Crane did not comply with the correct procedure in terminating him.
The employer went to great lengths to present evidence in court to support their decision in firing Mr. Steed, bring up his 2021 performance review that had both negative and positive feedback. They said they had followed procedure in standing him down on the 7th of April and terminating him by letter on the 8th but the Deputy President rejected that evidence, finding Mr. Steed’s version more believable that in fact he was verbally terminated immediately after being found napping.
The Deputy President said that if Active Crane Hire had dismissed Mr. Steed in a procedurally fair manner then it’s unlikely he would have found the dismissal unfair.
Section 387 of The Fair Work Act sets out the criteria for considering harshness in terms of dismissal and in this case the employer failed to meet their obligations by not giving Mr. Steed an opportunity to respond to the allegations of unsatisfactory performance and poor conduct before deciding to terminate him. As the Deputy President noted the animosity between the two parties, he did not consider reinstatement a suitable option instead ordering for Mr. Steed to be compensated.
An opportunity for employees to respond to allegations and defend themselves also means that the employer genuinely listens to them and assesses their response and evidence so that potentially the outcome could be something other than a dismissal- for example a formal warning or performance management plan.
If you feel that your employer hasn’t followed procedural fairness in dealing with any workplace matter including performance management plans, show cause and stand down letters or termination and redundancy notices give us a call today on 08 9301 0850
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