Unfair Dismissal Claim Successful

Victorian Employee’s Unfair Dismissal Claim Due to Differential Treatment

The Fair Work Commission in Victoria has decided that the dismissal of an employee that engaged in serious misconduct, was ultimately unfair on the basis that he was subject to differential and inconsistent treatment. 

In Doug Drowley v RTL Mining and Earthworks Pty Ltd, Commissioner Bissett of the Fair Work Commission held that despite there being a valid reason to dismiss the employee for serious misconduct, the dismissal was unreasonable and ultimately unfair because of the exercise in differential treatment shown to the employee compared to that of another employee. 

 

Unfair Dismissal Claim Case Details

On 10 August 2020, the employee, Mr Drowley, stopped the company vehicle, allegedly applied the handbrake, got out of the vehicle and checked the site van to find the “fill” point for the fresh water. On finding the fill point, the employee turned around to see the vehicle he was driving rolling away. The vehicle rolled down the incline on which it was parked for approximately 20 metres before colliding with a stationary truck. No one was injured in the incident with most workers in the crib hut on a break. The employee approached the vehicles and there was no damage evident so he moved the vehicle. Upon moving the vehicle, the employee further inspected the vehicles and found no damage, drove back to the site van where he replenished the fresh water and drove back to the Fire Service workshop (about 6 kilometres). The employee alleged that he contacted his supervisor and advised him of the incident upon completing the water fill. 

Following this incident:

• The employee was interviewed and subsequently stood down that day. A second interview was held on 18 August 2020. 
• On 20 August 2020 the employee was issued a show cause letter. On 27 August 2020 the employee met with the employer in relation to the show cause letter and provided the employer with a written apology with respect to the incident. 
• On 28 August 2020 the employer issued the employee with an amended show cause letter. The letter was in similar terms to that issued on 10 August 2020 with the substantive alteration being the deletion of the reference to an inspection of the light vehicle. It was alleged the employee had parked the vehicle in an unstable position, failed to preserve the incident scene and did not immediately report the incident. 
• On 18 September 2020, the employee was dismissed summarily for serious misconduct.

Unfair Dismissal Claim Case Decision

Commissioner Bissett of the Fair Work Commission found that the employee did not park the vehicle appropriate and he failed to preserve the scene in accordance with the employer’s procedure. It was held that the manner in which the employee reported the incident, did not contravene the employer’s required procedure. 

Consequently, Commissioner Bissett found that a failure to follow the employer’s Procedure in the circumstances of a mine site, provides a sound, defensible and well founded basis, and hence a valid reason, on which to dismiss the employee. 

Unfair Dismissal Claim Case Considerations

Despite the finding of a valid reason, there were a range of matters that Commissioner Bissett was required to consider prior to deciding whether the dismissal was harsh, unjust and unreasonable. The consideration of these matters is a requirement under s.387(h) of the Fair Work Act 2009 (Cth). 

The employee argued that the employer’s procedure sets out less severe forms of discipline in response to breaching the procedure. Further, he was subject to differential and inconsistent treatment because a fellow co-worker had engaged in similar misconduct and only received a warning.   

Discretion Regarding Disciplinary Action

The employer’s procedure sets out various disciplinary outcomes available including first written warning, final written warning and dismissal. The clause goes on to provide an exception to the provisions of the clause, “This clause does not prevent summary dismissal on account of serious and wilful misconduct”. 

Whether misconduct is serious involves an objective characterisation of the misconduct. Whether misconduct is wilful involves a wholly subjective test and focuses on the state of mind of the employee. As Ambrose J explained in Boral Resources (Queensland) Pty Ltd v Pyke, 

“Wilful” misconduct involves merely the doing of acts in fact amounting to misconduct intentionally, with the knowledge that those acts will amount to misconduct.

Commissioner Bissett was not satisfied that the employee had deliberately engaged in misconduct. Although the employee’s actions were deemed wrong, the employer’s procedure dictates a range of disciplinary actions available. It was held the employee was denied an opportunity to explore less severe forms of disciplinary action. 

Unfair Dismissal – Differential and Inconsistent Treatment

In regards to differential or inconsistent treatment, a fellow colleague of the employee, Mr Kiplin, was found to have failed for five months to properly perform a pre-start inspection on the truck involved in the incident. Mr Kiplin also knew the handbrake was not working and had known for a significant time. Both of these actions were in breach of the employer’s procedure. 

Commissioner Bissett held these were equally serious contributions to the incident which led to the employee’s dismissal. The difference in treatment was held to be the “most pressing issue” for Commissioner Bissett when determining whether the dismissal was harsh, unjust or unreasonable. Mr Kiplin was issued with a final written warning for his actions yet the employee in this claim, Mr Doug Drowley, was terminated from his employment. Thus, the employee’s dismissal was held to be unreasonable and ultimately unfair. 

This Victorian unfair dismissal case illustrates the importance of consistency when disciplining employees for misconduct. If the employer is required to exercise discretion in regard to a suitable punishment, the same disciplinary action must be taken against all employees guilty of the same or similar misconduct. The issue of differential treatment is clearly an importantly weighted factor that the Fair Work Commission must consider. 

We represent employees only for unfair dismissal, workplace rights, general protections and more, it has been a passion of mine for many years. If you feel that you may have been unfairly dismissed or have had your workplace rights violated, please contact me and my team for a confidential free consultation.

Read More: How to Lodge an Unfair Dismissal Claim

By Gary Pinchen

We are A Whole New Approach P/L we have been voted Australia’s leading workplace advisor by our clients. We are not lawyers, however, we are experts in anything to do with the workplace, we are a great place to start with your knowledge journey, wanting further information, lodging an unfair dismissal or general protection claim. We work in all states including, Victoria, NSW, QLD, SA, WA, Tas