Dismissal unfair as employer acted as ‘judge, jury and executioner’

fair work cases in Australia

Dismissed worker wins $12K for unfair investigation

A Northern Territory worker has won an unfair dismissal payout of $12,000 due to a biased workplace investigation into her misconduct. The Fair Work Commission found her employer acted as “judge, jury and executioner” by appointing a witness to her misconduct to lead the investigation. This was despite the employer having a valid reason to fire the worker, who told senior managers “Do whatever the f**k you want to do and dump whatever sh*t in my lap.”

If you face a workplace investigation, it is essential that you understand your rights and ensure they are not violated by your employer. There have been countless cases heard by the Fair Work Commission involving workers who have been denied procedural fairness.

Rights violations can include being denied the chance to respond to allegations or not being granted access to evidence. Having your investigation drawn out unnecessarily or conducted by someone with a conflict of interest are other common violations.

Fair Work finds valid reason, but dismissal ruled harsh

Let’s look at the events of the aforementioned case – Skei Batton v The Environment Centre NT Inc [2024].

48-year-old Skei Batton began working for not-for-profit The Environment Centre NT in July 2022 as a finance and office manager. Just after midday on 20 July 2023, she received an email from a colleague asking how she could reimburse fuel costs for volunteers. The fuel costs were incurred after the volunteers drove up to 500 kilometers to take part in a campaign shoot. This led to a back and forth of emails over the next three days.

Ms Batton wrote that she couldn’t assist with the reimbursement unless she was provided certain details. But soon the not-for-profit’s executive director and treasurer chimed in, imploring her to find a solution. It was then that Ms Batton vented her frustrations by replying to everyone in the email chain.

“As explained 3 times last week…What I need is the NAMES AND BANK ACCOUNT DETAILS of the people you want me to pay. I physically cannot process any transactions without this information. Nobody can,” Ms Batton wrote in the email. She then went on to say that she had been asked a “vague question” in the original email, before laying out her request in all capitals yet again.

“BUT IF YOU TELL ME THE NAMES OF THE PEOPLE WHO ARE INVOLVED IN THIS PROJECT I CAN BEGIN TO ANSWER THE REST OF THE QUESTION,”

she wrote.

Worker lets fly at meeting

On 24 July 2023, Ms Batton was invited to a meeting with the executive director and treasurer in which she vented her frustrations.

“Whatever! Do whatever the f**k you want to do and dump whatever sh*t in my lap [you’re] going to do. I don’t care!” Ms Batton said before leaving the office.

Following Ms Batton’s outburst, the executive director emailed her noting that she had “left ECNT premises immediately after our meeting, and have not returned.” She also detailed a list of tasks that she needed to complete, as well as remonstrated her for her conduct.

“I wish to let you know that I consider your conduct yesterday, and that contained in the attached email, to be unprofessional and unacceptable,” the executive director wrote.

Allegations levelled at worker

A few days later on 29 July 2023, after receiving no response from Ms Batton, the executive director sent her an email titled “Notice of warning and investigation.” The email detailed a long list of reasons why she was potentially facing dismissal.

This included being absent without leave on multiple days and repeatedly refusing lawful and reasonable directions. Also, for her “unprofessional” and “unacceptable” conduct via email and during the meeting a few days earlier. Ms Batton was formally warned that she needed to improve her performance or risk being dismissed.

“I am on heavy pain killers”:

Worker replies

Two days later, Ms Batton replied by sending an email with a medical certificate attached. The medical certificate covered the period from 30 July to 2 August 2023. In the email, she said that she would reply to the executive director’s previous email. However, she said that the email “overlapped action that I had already initiated last week through the Fair Work Ombudsman.”

Ms Batton then revealed that she was “on heavy pain killers” and that she would be “prioritising” a meeting with an Industrial Liaison Officer. Finally, she said that she would be seeking “third party mediation” and urged her employer not to contact her outside of work hours.

Worker stood down then dismissed

The next day, the executive director replied saying that the doctor’s name and signature was “not legible” on the medical certificate. She, however, granted Ms Batton’s leave, moving their meeting to discuss her performance. The director noted that Ms Batton had “provided no explanation for your absence last week.” And that she would be stood down with pay while an investigation into her conduct took place.

Ms Batton responded to the email and a meeting was held with the executive director and an industrial relations liaison officer. On 17 August 2023, The Environment Center decided to dismiss Ms Batton. The reasons cited included “misconduct of a very serious nature” that included “yelling and swearing” at the executive director and treasurer. The not-for-profit also cited Ms Batton “refusing” to comply with lawful and reasonable directions.

can swearing get you fired legally?

Workers makes unfair dismissal plea

In her unfair dismissal application, Ms Batton drew attention to her positive record at the not-for-profit. She said that she “worked extensively to establish and continually improve financial policies, processes, and procedures.” In regard to her outburst at the meeting, Ms Batton claimed that she “felt overwhelmed and unsafe” due to the executive director’s conduct.

She also argued that she was not provided sufficient time to improve her performance after receiving notification that she had to improve. Ms Batton highlighted that the investigation into her conduct began the following business day after receiving notification. She also argued that she was denied procedural fairness during the investigation. Ms Batton claimed that she was not provided with prior notice of meetings or the chance to arrange a support person to attend.

Ms Batton also argued that her conduct could not be considered serious under the Small Business Fair Dismissal Code definition. This stipulates that serious misconduct includes “theft, fraud, violence and serious breaches of occupational health and safety procedures.” She argued that swearing was acceptable in the workplace and that her outburst was an isolated incident.

Fair Work Commission decides unfair dismissal case

At Ms Batton’s unfair dismissal hearing, the Fair Work Commission found that The Environment Centre had a valid reason to fire her. It acknowledged that her email to her colleague was “highly emotional and belittling.” And that her conduct during the meeting with the executive director and treasurer was “belligerent and disrespectful.”

“For a senior employee to stand up, swear, storm out of the office and slam the door is reprehensible behaviour,” the Fair Work Commission said.

With regard to her absence from work over 3.5 days, the Fair Work Commission acknowledged that the not-for-profit had made “numerous” attempts to contact Ms Batton. It said that it was not fair for her to “simply disappear.” The Environment Center therefore had a valid reason to dismiss Ms Batton based on her absence.

“Too overwhelming:” Fair Work takes worker’s side

The Fair Work Commission, however, took into account the fact that Ms Batton was not a qualified accountant and that she was in over her head with the tasks she had been assigned. It noted that the not-for-profit should have provided here with more support for these tasks and that “the situation simply became too overwhelming” for her.

On the question of whether Ms Batton was denied procedural fairness, the Fair Work Commission sided with her. It said she did not receive “her statutory entitlement to a ‘fair go’.” The commission noted the executive director assumed the role of “judge, jury and executioner.” This was because she was both a witness to Ms Batton’s outburst and led the investigation into her misconduct.

“The executive director was a witness and complainant to the behaviour of the executive director,” the Fair Work Commission said. “As such, the executive director should not have conducted the investigation or made the decision to terminate the executive director.”

The Fair Work Commission therefore ruled that Ms Batton’s dismissal was harsh given she was not provided with procedural fairness. It ordered to pay her $12,000 plus superannuation as compensation.

casino trip gets employee fired

Worker fired for casino outing with “bro” wins unfair dismissal 

There is no shortage of Fair Work Commission cases where an employee was judged to be unfairly dismissed because they were denied procedural fairness. And this is despite, like in the previous case, the employer having a valid reason for dismissal. Another such case is Mark Andrawos v MyBudget Pty Ltd [2018].

Adelaide-based Mr Andrawos began working for MyBudget as personal budget specialist in 2016. His track record at the company included receiving numerous praise. But his reputation also included a tendency to “ignore hierarchies and cut corners on company procedures and appropriate workplace conduct,” Fair Work Commission records revealed.  

Mr Andrawos had received 12 informal warnings and three written warnings. This included for making inappropriate comments to a female client. Her was also subject to two disciplinary actions related to punctuality and behaving inappropriately to a female colleague.

“The white stuff or the clear stuff?”: Worker befriends client

Mr Andrawos formed a friendship with a man who later became a client. MyBudget alleged to the Fair Work Commission that Mr Andrawos would refer to this friend as “dude” and “bro.” Also, that he told the friend regarding his money: “I don’t want to see you f**king piss it up the wall.”

MyBudget also claimed that Mr Andrawos spoke about drugs with the friend during business calls. This included joking about “the white stuff or the clear stuff?” And referring to Perth as “the drug capital of the world.”

Casino outing leads to dismissal

The events that saw Mr Andrawos fired took place when he visited an Adelaide casino with this friend. While at the casino, Mr Andrawos’ friend gave him $150 for “safe keeping” so he would not gamble it. Sometime between gambling, Mr Andrawos persuaded his friend to invest his $140,000 inheritance into a MyBudget account.

MyBudget later received a complaint from the mother of Mr Andrawos’ friend. The company subsequently dismissed him for serious misconduct. It claimed that Mr Andrawos’ actions caused or had the potential to cause reputational damage to the company. Also, that he had mismanaged a conflict of interest with the friend.

Fair Work Commission decides

The Fair Work Commission acknowledged that Mr Andrawos should have disclosed the casino visit and other activities he had participated in with the friend. Namely, because it could have given rise to a potential conflict of interest. However, it found that Mr Andrawos was not of such seniority to cause reputational damage simply by visiting the casino.

The Fair Work Commission accepted that it was inappropriate for Mr Andrawos to refer to his friend as “dude” while dealing with him as a client. Given these findings and Mr Andrawos’ poor disciplinary record, it was found that there was a valid reason for his sacking.

However, the commission scrutinised MyBudget’s handling of the situation, identifying several procedural deficiencies that tainted the fairness of the termination process.

“Pre-determined”: FWC finds procedural fairness was denied

One critical aspect highlighted was that Mr Andrawos was only provided 24 hours to respond to the allegations. MyBudget also refused to grant Mr Andrawos access to evidence including statements from colleagues, recordings of telephone calls and text messages.

The Fair Work Commission also highlighted MyBudget’s apparent pre-determination of Mr Andrawos’ dismissal. It accepted that key decision-makers had already formed opinions about the outcome before conducting a thorough investigation.

It also criticised the internal investigation conducted by individuals who later played pivotal roles in the termination decision. This perceived conflict of interest compromised the integrity of the investigation and raised questions about the fairness of the outcome.

In light of these procedural failings, the Fair Work Commission concluded that Mr Andrawos’ sacking was unjust due to its harshness. MyBudget was ordered to pay him over $2,000 in compensation.

We can help you make an unfair dismissal claim

If you feel you have been denied the right to an unbiased and fair workplace investigation, give A Whole New Approach a call. We can help you understand the rights you have and how you can take your employer to the Fair Work Commission.

We can also help you if you believe your termination was harsh or if you have faced discrimination, bullying or sexual harassment. Our team has helped over 16,000 Australian workers take action via the Fair Work Commission. And we operate in every state and territory.

For a confidential consultation on how we can assist you, contact us at 1300 766 700.