In brief: Two recent decisions made by the Fair Work Commission provided comments on the problem employers face when attempting to discipline employees appropriately in situations where there has been a single instance of misconduct.  

Robert Solin v Chevron Australia Pty Ltd - worker dismissed for single instance of misconduct

Mr Solin had been employed over three years as a production technician and Chevron. Over those three years, he had an unblemished employment record. However, on the bus to work one morning, Mr Solin allegedly made comments that were derogatory towards women, and included racial slurs against Aboriginals. 

An Aboriginal co-worker on the bus overheard the conversation made a complaint to Chevron.

Chevron immediately dismissed Mr Solin for breaching their Discrimination Policy.

Fair Work Commission finds that dismissal was not an appropriate disciplinary response

Commissioner Williams held that, upon consideration of the misconduct and circumstances, Mr Solin's dismissal was a disproportionate penalty.  

Mr Solin was reinstated to his position as a technician, however, no orders were made for lost remuneration, in recognition of his conduct and to impose a consequence for the offence and hurt to other employees caused by his misconduct.

The Commissioner acknowledged that employers face a difficult decision when determining the appropriate disciplinary consequence for a single instance of misconduct. Often, a written warning is not viewed as a sufficiently serious consequence, but dismissal may be too harsh for the particular misconduct and situation.  

Jurgen Rust v Farstad Shipping - worker dismissed for failing random alcohol test

Captain Rust was a master mariner employed by Farstad Shipping for sixteen years. Before commencing a shift in September 2016, the captain was subject to a random alcohol test.  Captain Rust failed this test and was terminated for serious misconduct.

The captain said that he had been feeling anxious and depressed before his shift because of a past incident that had occurred on the same ship, and drank quite heavily the night prior to his shift to attempt to calm himself down.

Fair Work Commission finds dismissal unfair with failure to consider previous work incident 

Commissioner Bissett found that his dismissal was unfair, despite finding that he had committed a serious breach of the companies blood alcohol policy, due to Farstad's failure to consider a less serious penalty.  

The Commissioner found the dismissal to be harsh due to the captains long period of unblemished employment and the fact Farstad had failed to address the previous incident suffered by the captain.

Although Commissioner Bissett acknowledged the gravity of the captains conduct, she stated that Farstad's consideration of penalties was 'binary' as it considered only dismissal or non-dismissal, which was 'too narrow' in the circumstances.  

Employers must consider carefully how they discipline single instances of misconduct and look at other repercussions aside from dismissal  

Employers have the responsibility to ensure that their employees act appropriately, but must also ensure they do not disproportionately punish an employee for a single instance of misconduct. 

The limited range of disciplinary options often considered by employers increases the chance that a disciplinary action may be found to be disproportionate to the misconduct of an employee or conversely the consequence may not be strong enough to act as a deterrent or an effective consequence for poor behaviour.

A potential solution may be considering the development of an alternative disciplinary options.

Employers rarely have a legal right to impose a period of unpaid suspension or another financial penalty.

However, employers could consider the development of a system of other repercussions for employees who have been found to engage in misconduct to form a part of enterprise agreements or contracts to enable employers a wider range of disciplinary options. 

For example, employers could consider making employees that are found to have engaged in misconduct in the preceding 12 months ineligible for bonuses, commission, pay rises and other benefits as an alternative to 'binary' disciplinary options.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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