Note - this note relates to a decision that was quashed on appeal - our note on the appeal decision is here.
The Fair Work Commission’s decision in Odgers v Central Queensland Services Pty Ltd highlights the need for employers to follow their own processes when disciplining employees for misconduct. Ms Odgers was employed by a subsidiary of BHP as a truck driver at a remote mine site. She was dismissed in March 2019. The FWC found that BHP took three incidents into account in reaching the decision to dismiss Ms Odgers. 1. In September 2018, Ms Odgers spoke to both her supervisor and other workers inappropriately about a decision to dismiss a contractor who was a friend of hers. 2. In October 2018, Ms Odgers put some butter knives and a sex toy in a colleague’s bag just before they went through airport security. Ms Odgers said the this was a prank to get back at the colleague for a prank he had played on her some time earlier. There was no evidence that any of Ms Odgers’ colleagues were offended by what Ms Odgers did. 3. In March 2019, Ms Odgers (and others) posed for a sexually suggestive photo at the mine site while in their work uniforms. The Commission found that Ms Odgers’ conduct did create a valid reason for her dismissal. The Commission stated, “[i]n no uncertain terms, Ms Odgers’ misconduct was unacceptable”. However, the Commission found that there was an “abject failure” by the employer to follow its own investigative and disciplinary process. The evidence suggested that the relevant decision maker (who was not an HR professional) had completely ignored the relevant guidelines. In those circumstances, the Commission found that the dismissal was unjust and unreasonable. The Commission emphasised that not every procedural breach would render a dismissal unfair, stating: “I wish to reiterate that each time this respondent has a matter before me I will not hold it to the highest standard of ensuring every inch of procedural fairness has been afforded to a dismissed employee. In every matter the circumstances of each dismissal will be given appropriate consideration. However, for the respondent to have no regard at all to its obligations in this matter of applying [its own guidelines] pursuant to the relevant enterprise agreement, means that despite there being a valid reason for the dismissal, and despite Ms Odgers knowing the context of the respondent’s findings in relation to each of the incidents, I conclude that for the reasons above, the dismissal was unjust and unreasonable." The decision is another example of how having clear guidelines about disciplinary issues can be useful - but only if the employer follows them. Having and, critically, following, a fair process is a fundamental part of giving employees a “fair go”.
0 Comments
Leave a Reply. |
Details
Archives
February 2021
Categories
All
|