Fairly dismissed for one mistake

The Fair Work Commission's decision in Kezic v Brand Developers (Aus) Pty Ltd is an interesting example of an employee being fairly dismissed for a single error.

Brand Developers is a large direct order retailer. You have probably come across their infomercials at some point in your life.

The success of Brand Developers’ business relies on them being able to quickly and accurately pick, pack and distribute orders they receive. Accordingly, Brand Developers has well developed processes for these tasks.

Ms Kezic joined Brand Developers in 2011 and worked at one of their warehouses. Her role involved picking products for packing and distribution.

On 15 April 2019, Brand Developers received a number of orders for the Smokeless Grill (the informercial is here).

Instead of picking Smokeless Grills, Ms Kezic picked Air Roaster Ovens (the infomercial is here).

The packing team should have realised the mistake, but did not. As a result, the wrong products were delivered and Brand Developers received a number of complaints.

Brand Developers then conducted an investigation into what had occurred. The investigation appears to have been conducted carefully and included a detailed review of video recordings from CCTV at the warehouse.

The investigation concluded that Ms Kezic had been responsible for picking the incorrect items. It also found that the error was significant for a number of reasons:

• The Air Roaster Over was stored in a completely different part of the warehouse from where the Smokeless Grill was stored
• Ms Kevic did not work in the area where the Air Roaster Over was stored
• The products were very different sizes and weights
• The products packaging and labelling were completely different.

When Ms Kevic was interviewed about the error she did not provide an explanation about how the mistake happened and did not take responsibility for it.

The investigation concluded that, in the circumstances, Ms Kevic had deliberately disregarded the usual processes and, in effect, intentionally pricked the wrong products.

Brand Developers decided to terminate Ms Kevic’s employment and Ms Kevic then made an unfair dismissal application.

The Fair Work Commission found in favour of Brand Developers. Interestingly, Commission came to that conclusion without deciding whether Ms Kezic’s conduct was intentional.

The decision is unusual because a single innocent mistake by an employee which does not have health and safety implications rarely constitutes a valid reason for dismissal.

However, there were a number of factors that took this case outside the usual situation.

First, even if it was not an intentional, the error was still a glaring error for the reasons identified in the employer’s investigation.

Second, Brand Developers had a very clear picking process that it regularly trains staff in and emphasises to staff.

Third, Ms Kevic’s failure to take responsibility for the error. In relation to that, the Commission noted,

"Ms Kezic has also continued to deny responsibility for what occurred, despite what the investigation revealed, and has instead attempted to place the blame on others. Her actions in this context can be contrasted with the other employee, who acknowledged that he was at fault in not identifying that the wrong products had been picked, prior to the order being dispatched. However, he did acknowledge that he was at fault and apologised. He was also given a final written warning. His response can be contrasted with that of Ms Kezic."

The case is a useful example of he benefits for employers of having clear systems and processes in place and conducting fair and thorough investigations when things go wrong. .