Lack of consistency counts against employer in unfair dismissal claim

An employer has failed in defending an unfair dismissal claim, with the consistency of its disciplinary action, for this employee as against others, called into question.

In late 2015, a group of employees took industrial action against the employer in relation to enterprise agreement negotiations. The Applicant employee in this case left a voicemail message for another employee, who he believed to have not participated in the industrial action, saying “Hi mate, just wondering if you are working. If you are, you’re a f*$@ing scab.”

A complaint was subsequently made, and the Employer investigated the matter and ultimately terminated the Applicant.

The Applicant made an unfair dismissal claim. Commissioner Platt determined:

“… that [the Applicant’s] conduct was a valid reason to terminate [the Applicant’s] employment. However, the dismissal was a disproportionate response to [the Applicant’s] conduct which was as out of character. [The Applicant’s] good service and work performance did not appear to be considered, and the disciplinary outcome appears inconsistent with other similar matters. On this basis I have found that the dismissal was harsh, unjust or unreasonable.”

Relevant to employers should be Commissioner Platt’s comments in relation to consistency. It was noted that in two separate incidents involving other employees, both in which the employees in question displayed aggressive behaviour comparable to that of the Applicant (though not in the same context), resulted in warnings.  This inconsistent treatment by the Employer, together with the Applicant’s unblemished work history, was enough to convince the Commissioner that the termination was harsh, unjust or unreasonable.

The Applicant was reinstated to his position.  The Commission declined to make an order for lost wages in the circumstances of the Applicant’s conduct.

Lessons for Employer

In this case there was no question that the Employer had a valid reason for the dismissal, and that it followed a proper process. However, the Employer failed in its defence because it failed to take into account the employee’s work history when making its decision to terminate, and further, it had previously taken lesser disciplinary action with other employees who had engaged in comparable conduct.  Further the ultimate result for the Employer was an order the Employee be reinstated.

 Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.