My Employer Has Dismissed Me Unfairly – Can I Lodge An Unfair Dismissal Claim?

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A recent Fair Work Commission case has highlighted the importance of procedural fairness in the dismissal procedure. 

In Ronchi v Johns Lyng Group, Mr Simon Ronchi made an application to the Fair Work Commission alleging that he had been unfairly dismissed from his employment with Johns Lyng Services Pty Ltd. Mr Ronchi was employed as the OHS Manager Victorian Insurance Brands from 2 March 2020 until his dismissal on 27 July 2021. The Respondent dismissed Mr Ronchi for three reasons: sending inappropriate messages to the Victorian State Manager, promoting and operating his own business and a lack of deliverables during working hours.

Dismissed due to text message

In regards to the first reason for dismissal, Mr Ronchi was found to have sent an anonymous text message to Mr Barber (Victorian State Manager), in which he told Mr Barber that he was having an affair with his wife, Nikki. Mr Ronchi then sent a second text message to Mr Barber saying “I’ll see Nikki soon”. Both messages upset and unnerved Mr Barber and his wife Nikki. Mr Barber gave evidence that he did not know who may be behind the messages insinuating that his wife was having an affair, and the second message was more concerning as it revealed knowledge of their personal residential details. Mr Barber discovered the location of the pay phones through a Google search and engaged a licensed private investigator to track the anonymous text messages. CCTV footage showed Mr Ronchi sending these messages. 

In regards to the second reason for dismissal, the Respondent had an email in which the Applicant promoted a Company which is registered in his own name, in breach of a clause in his employment contract regarding conflicts of interest. 

In regards to the third reason for dismissal, the CCTV footage obtained for the first allegation showed the Applicant attending motels and doing person shopping during work hours, amounting to a “neglect of duties”. 

Commissioner Yilmaz of the Fair Work Commission held that the reasons for the dismissal were valid reasons. The text messages were considered a serious matter and Mr Ronchi’s overall conduct was deemed inappropriate and intended to cause harm to two employees. The conduct was held to be wilful and inconsistent with Mr Ronchi’s express and implied obligations to his employer. The reasons for dismissal were considered a proportionate response to Mr Ronchi’s disregard for his express contractual duties and implied duty of fidelity and good faith.

Despite determining there was a valid reason for dismissal, Commissioner Yilmaz of the Fair Work Commission held that Mr Ronchi was not afforded an opportunity to respond given he was not provided with any of the evidence (i.e. texts, emails. CCTV footage) and so he could not have understood the gravity of the allegations and breadth of evidence against him, impacting his response. It was held that he had not been given a genuine opportunity to consider the seriousness of the allegations and the breadth of evidence against him.

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.

Theft and Fraud – Valid Reason but Dismissal Unreasonable and Unjust

In Joshua Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd, Commissioner Cambridge held that the employer’s finding of serious misconduct in respect to the allegation regarding the applicant failing to properly record and receipt the cash provided in respect to the purchase of the New Balance shoes, has established valid reason for the dismissal. 

However, Commissioner Cambridge held that the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours, has meant that there was not proper basis to justify the summary dismissal of the employee. 

The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal. The summary dismissal of the worker was held to be unreasonable and unjust. 

Disrespectful and Inappropriate Behaviour – Valid reason but Dismissal Unjust

In Gregory Gibbens v The Commonwealth of Australia (Department of Home Affairs), Commissioner Williams found there was a valid reason for dismissal, observing the employee’s behaviour “was in each of the four instances disrespectful and inappropriate”. 

However, the Commissioner found that the dismissal was unjust, because “at no stage did [the employer] specifically warn [the employee] that further instances of disrespectful and inappropriate behaviour when dealing with passengers could result in his employment being terminated”.

The Importance of Procedural Fairness

Procedural fairness in unfair dismissal cases is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself. Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. Procedural fairness can take many forms, such as whether an employer has followed their own procedures in dismissing an employee, whether the employee had an opportunity to explain their side of whatever happened, being able to seek advice or have a support person available at a meeting and making a decision to dismiss an employee on a suitable disciplinary penalty based on all relevant information, such as warnings and disciplinary action.

Employer has dismissed me

What is apparent from the above case is that the outcome of a matter can turn on the procedures followed by an employer when responding to such behaviour. Numerous cases have shown that despite having a valid reason for dismissal, deficiencies in the process can lead to a remedy being granted – including in some cases reinstatement. Nevertheless, depending on the gravity of the misconduct (particularly in sexual harassment claims), procedural deficiencies may still render the dismissal harsh, unjust or unreasonable. 

With discretion and the option to reinstate at the hand of a Fair Work Commission member, it is vitally important for employers to have all their ducks in a row. This includes having up to date policies, procedures and workplace training, and if responding to inappropriate workplace conduct, a thorough investigation and show cause process, including giving due consideration to mitigating factors.