The importance of affording an employee procedural fairness in a summary dismissal

An interesting unfair dismissal case which shows the importance of affording an employee procedural fairness in a summary dismissal (which sometimes seems counter-intuitive). Some facts below:

  1. The applicant was a shopfitter and cabinetry maker for about 5 years.
  2. The applicant’s boss gave a direction that the applicant is prohibited from parking his utility vehicle in a certain spot. The applicant did not comply with the direction and parked in the prohibited spot.
  3. The respondent telephoned the applicant, and the applicant engaged in aggressive and abusive language resulting in an ‘unpleasant argument’ and the applicant delivered an ‘expletive laden tirade’.
  4. The respondent terminated the applicant on the same day by way of email.
  5. The Commission found that the applicant had engaged in serious misconduct and summary dismissal was warranted. However, the Commission also held that the applicant was not provided with an opportunity to respond to the circumstances and the approach adopted by the respondent was ‘severely flawed and it denied the applicant natural justice’. In instances of serious misconduct, an employee should still be provided with an opportunity to:
    1. Provide an explanation; and
    2. Put forward mitigating factors.

Once the above has been carried out, then the respondent could dismiss the employee.

  1. The dismissal was rendered unfair because of the absence of procedural fairness and compensation was awarded. The Commission made a statement that ‘even argumentative and difficult people are entitled to natural justice. There was no justification for not hearing from the applicant before the decision to dismiss was made.’

A good reminder that even in circumstances where the serious misconduct appears so obvious and substantiated, the final step of providing procedural fairness is still required.

If you would like to read the decision, it can be found here.