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Employment and Migration Blog

Thinking of taking disciplinary action against an employee?

Posted by Shanni Zoeller on 5 Feb 2021

Although an employer may have a valid reason to terminate an employee, the Fair Work Commission can still find the dismissal harsh, unjust or unreasonable and award the successful applicant compensation. A recent case in point is Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020].

The Facts

Mr Lupson was employed by Australia Pacific Airports (Melbourne) (APA) for more than 8 years as an Electrical Supply Team Member.

In May 2020, Mr Lupson took a period of personal leave to recover from an injury he sustained outside of work. On 23 January 2020, Mr Lupson attended the workplace with the intention of returning to work, however his aviation clearance (ASIC) had expired and he was escorted off the premises and stood down on pay, pending an investigation.

From 24 January to 12 March 2020, APA investigated Mr Lupson’s conduct and he was invited to attend three meetings to gauge his views on the issues at hand. In late January and again in late February 2020, Mr Lupson was issued with show cause letters.

On 24 February 2020, the People Manager of APA, received a complaint about the way in which Mr Lupson had conducted himself at a former colleague’s funeral.

On 3 March, Mr Lupson was issued a further show cause letter containing 12 allegations of serious misconduct. The letter required Mr Lupson to provide a response to the allegations by close of business, 5 March 2020. A few days after being issued with the letter, Mr Lupson provided APA with a medical certificate and requested an extension of time to respond. APA granted the extension until midday on 13 March 2020.

The Outcome

APA did not receive any response from Mr Lupson by the deadline, so it made attempts to contact him by phone which were unsuccessful.

APA terminated Mr Lupson’s employment based on 6 out of 12 “substantiated” serious misconduct grounds which included:

  • sending numerous emails from his work email address which contained inappropriate and unprofessional content;
  • accessing and entering APA premises without proper authorisation (an expired ASIC), whilst on an extended period of personal leave and backed up his C Drive on a personal USB device;
  • sending an email to two senior managers of APA at 2.54am on 20 December 2019 that contained a profanity;
  • engaging in inappropriate workplace behaviour when he told APA’s Industrial Relations Manager that he didn’t realise his ASIC had expired because he hadn’t used it in a long period of time;
  • storing inappropriate content and emails in his work inbox;
  • engaging in inappropriate behaviour at a former colleagues funeral service when he:
  • approached a colleague prior to the service and said “I can’t believe you had the nerve to attend the funeral”;
  • stared at this colleague throughout the service and shook his head at him on three occasions; and,
  • approached members of management after the service and behaved aggressively towards them by physically brushing hard against a colleague and speaking aggressively to the group.

Shortly after APA issued Mr Lupson with his termination letter, his union representative provided a partial response and requested time to provide the rest of the responses because of Mr Lupson’s poor health. This was denied as Mr Lupson’s employment was already terminated.

Mr Lupson lodged an unfair dismissal claim and alleged that the real reason for his termination was because of the support he provided to union members in his role of union delegate and the reports he made to WorkSafe and via the ‘Speak Up’ policy and whistleblower hotline.

The Commission found that Mr Lupson’s attendance at APA premises without a valid ASIC amounted to a serious breach of the condition of his employment with APA – possessing a valid ASIC was an inherent requirement of his role. It also found the allegation of Mr Lupson copying company information onto a USB, without authorisation and taking it away from APA premises was also a valid reason for termination.

The Commission found that the other reasons relied upon by the APA to justify Mr Lupson’s termination were not properly substantiated to constitute a valid reason. Even though APA had investigated Mr Lupson’s alleged serious misconduct, the Commission was of the view that it was “problematic in an important respect”.

“As is evident in the materials before the Commission, the employer in its own words “framed” a total of twelve allegations which evolved over the course of the disciplinary process. In my view, it was a retrospective “kitchen sink” type approach aimed at justifying the termination of employment. I consider these factors weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.”

Accordingly, Mr Lupson was awarded $8,384.67 (gross) plus superannuation as compensation (which was equivalent to the notice period not paid).

As can be seen from the above case, it is important for employers to have their t’s crossed and I’s dotted before it embarks on terminating an employee.

Previous instances of unacceptable conduct exhibited by an employee months prior, but not dealt with, or dealt with by a “slap on the wrist”, cannot be used by an employer at a later time to justify taking disciplinary action against a problematic employee or bolstering an employer’s reasons for terminating an employee’s employment. Such misconduct must be recent, legitimate, and dealt with promptly in accordance with company policy and procedure.

If not, an employer may find itself incurring significant costs to defend an unfair dismissal claim which could result in having to pay the applicant compensation.

If you are thinking of taking disciplinary action against an employee, or have questions about the approach you will be embarking upon, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you today.  

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