Three reasons why a dismissal for a valid reason can be unfair – a recent case example

The Fair Work Commission's decision in Scott v Latrobe Regional Hospital is another interesting example of when a dimissal for a valid reason can be unfair.

Background

Mr Scott started work as a security guard at the Latrobe Regional Hospital in 2011.

On 20 June 2018, Mr Scott responded to a call for security assistance involving a drunk patient.

There were conflicting versions of exactly what happened next. Resolving the conflict was not helped by the fact that some CCTV footage of the incident had been deleted.

​However, it was clear that:

• Mr Scott immediately stood close to, and in front of, the patient
• The patient kneed Mr Scott in the groin
• Mr Scott grabbed the patient
• The patient fell, or was pushed, to the ground
• The patient suffered a blood nose.

After a workplace investigation, the hospital concluded that – among other things – Mr Scott had breached the hospital’s DEEP (De-escalation, Engagement and Prevention) policy.

The hospital said that Mr Scott had incorrectly positioned himself “too close and in the face of the patient” and then responded with force when he was kneed in the groin. The hospital found that – as there was no immediate threat to the patient or anyone else – Mr Scott should have kept space between himself and the patient initially and backed away when the patient assaulted him.

On 6 August 2018, the hospital issued a termination letter to Mr Scott that stated, “your conduct on 20 June 2018 amounts to serious misconduct and warrants the immediate termination of your employment.”

Mr Scott then made an unfair dismissal application.

The Fair Work Commission’s findings

The Commission agreed that Mr Scott’s conduct breached the DEEP policy and that there was a valid reason for the dismissal.

However, the Commission found that his dismissal was harsh and unreasonable. The significant factors the Commission took into account in reaching this conclusion were:

• Mr Scott “was let down by the other employees on the scene, who appeared to have failed to de-escalate the situation”

• Mr Scott’s length of service without formal disciplinary action (although Mr Scott had been counselled about one incident in early 2018 involving the use of force)

• The hospital failed to follow its own disciplinary process. In particular, the hospital’s policy required it to provide Mr Scott with the findings of the workplace investigation, and the reasons for those findings, before taking any further steps. In this case, the investigation’s outcome and reasons were only provided to Mr Scott in his letter of termination.

Finally, the Commission stated:

"Whilst not strictly relevant to the dispute before me, I observe that the Respondent’s conduct in failing to quarantine the entirety of the CCTV footage in the circumstances before me is perplexing at best. As a matter of prudent Human Resource practice, I would have expected the Respondent to go to some lengths to preserve such evidence in circumstances where an investigation into the incident had commenced.”

​Comment

The case highlights several important principles for anyone conducting workplace investigations:

• Treat employees equitably. If multiple employees are involved in an incident then it may be unfair for the investigation to focus on only one of them
• Retain evidence. Keep all the evidence relevant to the findings in the investigation – including CCTV footage
• Follow any investigation and disciplinary policies carefully.