Unfair dismissal - can an employee's long experience count against them?

In many cases, an employee’s long and positive employment history counts in their favour when assessing an unfair dismissal claim. For example, in the recent decision of Scott v Latrobe Regional Hospital, the employee’s length of service was one of the factors that went towards the Fair Work Commission finding in favour of the employee notwithstanding that there was a valid reason for dismissal.

However, two recent decisions have highlighted the potential “double edged sword” for experienced workers facing misconduct allegations.

In BlueScope Steel v Habak, the Full Bench of the Fair Work Commission considered a case involving a worker who had given 39 years’ service and who had been commended for “sustained high performance” in 2014.

The Full Bench found that the there was a valid reason for the employee’s dismissal. In considering whether the dismissal was nevertheless harsh, the Full Bench stated:

“The [employee’s] work history and the impact of the dismissal on him are factors that weigh in favour of a finding of harshness. However, these factors have to be balanced against an expectation that such a long serving employee would follow the policies and procedures of the [employer].”

Ultimately, the Full Bench found against the employee - reversing the decision at first instance.

Similarly, in Dias v Commonwealth Bank of Australia, the Fair Work Commission considered an unfair dismissal claim made by a bank employee with 13 years’ experience. Again, the employee’s length of service worked both as an asset and a liability. The Commission stated:

“I have taken into account the [employee’s] 13 year period of service, her family circumstances and poor prospects of alternative employment in the banking sector. I have earnestly grappled with the issue of whether these factors of ‘harshness’ outweigh the seriousness of the allegations of misconduct, when viewed collectively, and in the context of other ongoing performance issues over two years. Regrettably, I am satisfied that they do not. On one view, an employee’s long period of service will actually tell against a finding of ‘harshness’, where it might ordinarily be expected the employee would be very familiar with the Bank’s policies and procedures and where the employee has been properly trained. In short, a long serving employee would be expected to know better.”

The Habak and Dias decisions highlight that an employee’s extensive experience might count against them in the context of a workplace misconduct investigation and its consequences. In both those cases, the matters in issue involved fundamental aspects of the employee’s role – safe operation of machinery in the case of Habak and following an account authority in the case of Dias. In those types of situations, it may be reasonable for employers to expect more of very experienced employees than they would of others.






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