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Full decision here.

Introduction

Having lost his unfair dismissal application before a single member of the Commission, the applicant sought leave to appeal this decision before a Full Bench of the FWC – and won reinstatement.

This is a history lesson on the many Hitler parodies that you may have seen over the past 10 years, and the origin of the “meme”. And not to mention, that sometimes a joke is just that, a joke.

Background

The applicant had been employed as a process technician from 16 January 2012.

The applicant’s employer was involved in a long running industrial dispute relating to the bargaining of a new enterprise agreement with the applicant’s union.

The application was dismissed effective from 18 January 2019, with four weeks’ pay in lieu of notice. His dismissal arose from a video which he prepared together with his wife, on 3 September 2018 entitled “Hitler Parody EA Negotiations”.

Parody videos and Memes (a history)

The video was prepared using a website called “Caption Generator”. This website contains a small collection of video clips with non-English dialogue and allows the user to add subtitles to create an alternate story or theme for the video. The most well-known of the videos is a clip from the German language movie Downfall, which portrays the last days of the Third Reich and is centred on events in Adolf Hitler’s bunker near the Reich Chancellery building in Berlin. The scene depicted in the clip shows Hitler breaking down when he learns that a counterattack against advancing Russian forces, which he had previously ordered SS Obergruppenfuhrer Felix Steiner to initiate, had not occurred and launching into an angry and bitter tirade in which he blames various persons for the situation into which he had led Germany. It marks Hitler’s final realisation that all his plans had come to nothing, that the complete defeat of Germany could not to be avoided and that Berlin would soon fall.

Parody videos of this scene from Downfall began not long after the film was released in 2004. Typically, they use subtitles to adapt the scene’s depiction of Hitler’s realisation of defeat to contemporary political, cultural or social issues. In many cases, the humorous effect is achieved by the juxtaposition of the grave and dramatic events depicted in the film and the relative banality of what is being discussed in the subtitles and the degree of inventiveness displayed in the adaptation of the scene to an entirely different context. There were already thousands of these parody videos on the internet by 2010 such that the use of the clip in the way described can be said to have become a meme. A “meme” – a term coined by the evolutionary biologist Richard Dawkins in the 1970s – is a cultural element, concept or behaviour which is passed from one individual to another by imitation and communication.

The applicant’s video

The subtitles added in the applicant’s version of the clip refer to the bargaining for the new agreement. In summary, it is apparent that Hitler is assigned the role of an unnamed manager in charge of the bargaining strategy. He is informed that the employees have voted overwhelmingly to reject the employer’s proposed enterprise agreement, and then falls into a rage about the failure of the company’s bargaining strategy and the continued resistance of employees.

The applicant’s video appeared (as one of thousands of videos) on the Caption Generator website. It is reasonable to say that it could only be found on that website if one already knew it was there and used the browse function to search for it. On 3 September 2018, the applicant posted a link to the video on Facebook, but access to the video was confined to a restricted group of people – a closed group the members of which were all employees of the applicant’s worksite. That same day, while working the nightshift, the applicant showed the video to his workmates. He did this in two ways: first, by using the work computer of another employee to access his Facebook account and, second, by showing the video using his personal device.

The employer became aware of the video

Management became aware of the existence of the video (presumably by word of mouth from someone who had seen it) and commenced an investigation. On 31 October 2018, the applicant was required to attend a formal investigation meeting, at which he admitted that he had shared the video but beyond that declined to provide information. The following day he was, by letter, stood down on pay on the basis of the following allegations:

“It is alleged that you:

  • Have shared and distributed material which is highly offensive and inappropriate;
  • Utilised another employee’s BP logon to share the material;
  • Were involved in creating this material; and
  • Are aware of other/s involved in creating the material and are potentially covering up.”

The applicant’s remorse

After a number of further steps were taken in the process, the applicant emailed a letter to his employer, explaining that he had not intended to offend anyone; that the video was created by his wife, was intended to be humorous and boost employee morale and did not identify the employer or any individual; that it was posted on a private Facebook page and was not intended to be viewed by members of his employer’s management or negotiation team; and that he removed the link on the Facebook page once he became aware that it may have been viewed outside of the private group. He also said that he suffered from a mental illness which affected his thought processes and caused him to tend to impulsivity and poor judgment, and he had an unblemished work record of 7 years.

The dismissal

Following further investigation, the employer’s management (located external to the applicant’s worksite) dismissed the applicant for breaching the company’s code of conduct.

The original decision

The Deputy President, in dismissing the application:

“Notwithstanding that the…Facebook Group is a private group which only members of the…Facebook Group can access; the evidence is that many of the 2014 Agreement covered workforce are members of the…Facebook Group. While a member of the public would be unlikely to relate the video to the industrial events then occurring at [the employer], the members of the…Facebook Group were familiar with the negotiations and the identities of those involved and could easily draw parallels between the words attributed to Hitler and the Nazi generals via the captions and events which occurred during the negotiations”.

And further:

“Notwithstanding that the audience of the…Facebook Group was restricted, the very identity of that audience made the sharing and distribution of more significance than a larger audience with no relationship to the [the employer’s] worksite.”

Sense of humour – not

The Deputy President then gave consideration as to whether a reasonable person would consider the video to be offensive or inappropriate, and said:

“I do not accept that by labelling something as a parody is a ‘get out of jail free card’ and necessarily means something is not offensive. A racist joke is by name humour but is likely to offend a person of the nationality at which it is aimed.

“Depending on the circumstances in which it occurs ‘poking fun’, ‘taking the mickey’ or ‘sending up’ might be disrespectful, rude, demeaning and/or offensive. For example ‘sending up’ a religious deity might be deeply offensive to some groups of people”.

Then citing:

“The FWC and its predecessors have previously considered cases in which an employee has made references, or likened their employer, to Hitler or the Nazi regime. In APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 it was held that carving the words “Welcome to hell” and etching a swastika into an ice block in protest of the conditions of work in a freezer room was insulting and offensive conduct (whether or not the business employed Jewish people or the employee intended to offend anyone). Such conduct was held to have been a valid reason for the relevant employee’s dismissal”.

And:

“In CPSU v Australian Broadcasting Corporation [2005] AIRC 737 SDP Drake held that calling an employer a ‘Nazi’ was ‘inappropriate and offensive’ even in the ‘context of a heated industrial meeting’”.

And…

“In Pitt v Woolworths (SA) Pty Ltd [2003] AIRC 673 an employee’s actions in calling his employers ‘Nazis’ was found to amount to a valid reason for his dismissal”.

Concluding:

“I am satisfied that when viewed in context that a reasonable person would consider the Hitler Video inappropriate and offensive”.

Appeal grounds and submissions

In paraphrasing the seven grounds for appeal, it was contended that the Deputy President did not appreciate that it was a joke – and nothing more.

Consideration (they do have a sense of humour?)

The Full Bench decide that the critical issue which the Deputy President had to determine was whether the conduct was of such a nature to justify dismissal. This required the making of an evaluative judgment on her part as to the character of the video’s content. Stating:

“We do not accept that it was reasonably open for the video to be characterised in the way it was by the Deputy President. Even considered in isolation from its memetic context, it is apparent that the video does not liken BP management to Hitler or Nazis in the sense of stating or suggesting that their conduct or behaviour was in some sense comparable in their inhumanity or criminality. What it does do is to compare, for satirical purposes, the position [the employer] had reached in the enterprise bargaining process as at September 2018 to the situation facing Hitler and the Nazi regime in April 1945. The position might be different if the clip used from the Downfall film depicted Hitler or Nazis engaging in inhumane and criminal acts (as many other parts of the film do); in such a case a comparison in terms of conduct or behaviour might be inferred and reasonably be regarded as offensive. But it does not. By way of illustration, if it is said that someone is like Napoleon at Waterloo, this is obviously not to be understood as drawing a comparison between the person and the personality, behaviour, deeds or stature of Napoleon Bonaparte; rather, it is a stock way to say that the person is facing a final, career-ending defeat”.

Reinforcing (that they “get-it”):

“The position becomes even clearer when one considers the context of the development of the use of the Downfall clip into a meme. That the clip has been used thousands of times over a period of more than a decade for the purpose of creating, in an entirely imitative way, a satirical depiction of contemporary situations has had the result of culturally dissociating it from the import of the historical events portrayed in the film. After this period, any interest which remains in the clip will usually reside in the degree of inventiveness involved in successfully adapting the scene to fit some new situation. Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving Hitler or Nazis”.

Concluding

“For these reasons, we consider that it was not reasonably open to the Deputy President to find that…the dismissal…constituted a valid reason for dismissal. The allegation was premised on the proposition that the video was offensive and inappropriate because it compared [the employer’s] negotiating team to Hitler and Nazis – a proposition which we consider to be unsustainable…”

The applicant was reinstated to his former position, with the Full Bench reserving its decision on the amount of money to be afforded to the applicant considering deductions for any alternate employment he may have undertaken and a discount for misconduct.

Commentary

Whilst I recognise that the depiction of Hitler may still be a very “raw” subject to those who suffered under the Nazi regime; I have seen these videos (mainly in the context of AFL controversies) and find them both amusing and clever. In explaining the context (and long history) of the parody videos, the Full Bench showed common sense. Also, the video probably acted in the employer’s favour by instilling a sense of humour into a tense industrial standoff.

And let’s not forget the late great Charlie Chaplin, depiction of Hitler in the “Great Dictator”. Admittedly, before my time…

Have a laugh and have a great day!

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6609.htm

Introduction

In the circumstances, the Commissioner did a great job of restoring – not only a working relationship, but (maybe) a friendship.

The Commissioner was also careful in not condoning the breach of law relating to logbooks.

In short, a strange – but excellent – outcome!

Summary

This matter relates to a 68-year-old truck driver who had worked for a rural transport company for 13 years. The Commissioner in this matter not only decided to reinstate the applicant but got the parties (who had known each other for years) to agree on a number of important grounds.

The Commissioner also commented on age discrimination when seeking employment.

Falsifying the Logbook admitted

The issue of falsifying the logbook was one of contention, with the Commissioner preferring the evidence of the applicant over that of the respondent, stating:

“The Applicant struck me as a witness of truth. He used the colourful language no doubt often used by him. He spoke honestly about falsifying his logbook. He openly conceded that he drove home to Deniliquin illegally.

“I found [the respondent’s witness] to be less believable. That is not to say he was a liar. However, his attempt to characterise his phrase ‘go the back way’ as directional advice was far-fetched. It was clear that he was suggesting that the Applicant might better avoid detection by authorities if he went ‘the back way’.

Fatigue kills

The Commissioner finding that:

“I find that the direction to divert to Parkes, NSW was not lawful or reasonable. Mr Lumbar did not invite the Applicant to take his 24-hour break before going to Parkes. [the respondent’s witness] already knew that the Applicant was in breach of that requirement. The Applicant’s failure to comply with the direction to divert to Parkes, NSW was not a valid reason for dismissal.

However, that is not the end of the matter. I am deeply troubled by the Applicant’s decision to falsify his logbook and to travel back to Deniliquin in breach of the lawful obligation that he have a 24-hour rest period. Mandated rest periods are for the benefit of truck drivers and also for the benefit of other drivers on the road. Fatigue kills.

“The Applicant’s decision to travel back to Deniliquin in breach of the lawful obligation that he have a 24-hour rest period was misconduct. It provided a valid reason for the termination of his employment. The Respondent did not elect to terminate the Applicant’s employment for that reason, but it was entitled to do so. However, having regard to the findings I made above about [the respondent’s witness] direction to the Applicant that he divert to Parkes, NSW it would appear that the Respondent was prepared to be complicit in the breach. There should be a consequence for both the Applicant and the Respondent for their respective preparedness to ignore rules around fatigue”.

Valid reason to dismiss the employment, but…

Whilst the respondent had a valid reason for dismissing the applicant, the Commissioner found that it was the applicant’s refusal to divert to Parks was the reason given and, this reason being unlawful, made the dismissal unfair.

In commenting on the reason given for the dismissal provided by the respondent to the applicant, the Commissioner noted:

“…The argument between him and [the respondent’s witness] 2019 was that opportunity. For the reasons I have stated above the Applicant was entitled to reject the direction given by [the respondent’s witness].”

The Commissioner found that the dismissal was “harsh” given the applicants unblemished employment record, his age, and the difficulty that a 68-year-old man has finding alternative employment in rural NSW.

“The fact that the Applicant is 68 years old and is living in a rural town limits his employment opportunities considerably. The Applicant gave evidence that he had tried to find work since the termination of his employment but had been unsuccessful. That is not surprising. Older workers are routinely discriminated against. One does not have to be Nostradamus to predict that, more likely than not, the Applicant will never work again. It is almost certain that, at his age, he will never again find a job that pays $109,188 per annum. According to the most recent Census, Deniliquin has an unemployment rate of 5.4% and personal median annual income of $30,472. 39”.

Reinstatement: Employee says no, Respondent says yes…

The applicant submitted that reinstatement was not a practical solution given the fractious relationship between the applicant and [the respondent’s witness].

The Applicant said:

“Even the old days we work together, we drank together, we played up together, we’ve done everything together, but as he’s got to become a bigger businessman I suppose people change, he’s got a lot on his mind and all the rest of it, and, you know, like you never – you never expected – a couple of me and my other mates they’ve been there 14, 15 years, you know, we just love the job, but everything just changed in the last six or seven years or so and is no communication. [Another employee of the respondent] a little bit different, is more talkative and a bit more cooperative sort of thing, [the respondent’s witness] he’s just got no time for anybody except himself – well, I want to say I know all his work commitments and everything like that, so – but, no, there is no chance of me ever going back there I’m sorry to say. As much as I like the job everything, but that just wouldn’t be any-any hope.”

However, the Respondent did not agree, commenting:

“Commissioner, it’s very hard to get good drivers and I’ll say John is probably one of my better drivers, a lot better driver.” [The respondent’s witness] then said when prompted by the Commissioner “Yes, I would take him back.”

Commissioner resolves stubborn behaviour?

The Commissioner adding:

“The Applicant and [the respondent’s witness] have known each other for about 35 years. They have a robust relationship. They are, at times, like two old bulls in a paddock. The events of [leading to the dismissal] are regrettable. Neither man would put aside his pride to:

  1. a) in the case of the Applicant, ask for his job back, or
  2. b) in the case of [the respondent’s witness], invite the Applicant back to work.

“But despite the events that have passed and noting the difficulty that the Applicant has found finding employment, I think it best that the working relationship be restored. Both men should respectfully and courteously sort out their differences and go back to working with each other. They should both commit to working with each other productively”.

Financial advice?

And in providing financial advice to the applicant, the Commissioner said:

“For his part the Applicant needs to focus on his intention to retire in two years’ time and to maximise his income in that period. As a 68-year-old man living in Deniliquin he can best to do that by returning to work for the Respondent. The order that the Respondent reinstate the Applicant does not compel the Applicant to work for the Respondent. He may decline to be reinstated. He may resign at any time after he is reinstated. That is a matter for him. However, the order of reinstatement recognises that the Applicant was unfairly dismissed and is best able to maximise his pre-retirement income by returning to work for the Respondent”.

The time between being dismissed and reinstatement

In this regard in a nod to biblical “wisdom of Solomon”, the Commissioner found both the applicant and respondent equally culpable and awarded the applicant half the remuneration lost during this period.

However, continuity of employment was ordered.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5408.htm

As indicated in the headline, this the nightmare that faces employers who have been accused of unfair dismissals: reinstatement. The decision is also worrying in that Commissioner Spencer took a very strict procedural approach and favoured the applicant’s evidence over that of the respondent. That is, in the Commissioner’s view, the respondent did not prove its case.

Also relating to the chronic lateness (albeit in some cases only minutes), noting that the applicant was working on a production line, where everybody needs to be in place at the allotted time, the Commissioner seemed to put more weight to the applicant’s personal circumstances than that needs of the respondent.

Two comments from my past come to mind:

  1. If you are not ten minutes early, you are late; and
  2. “You need to get your toenails cut…because they are obviously catching on your bedsheets and preventing you from getting out of bed”.

The Commissioner seemed to also mete out his own view of “punishment”. Whilst ordering reinstatement, the reinstatement was to be delayed by 14 days and there be no compensation for wages lost due to the dismissal. Or was this to compensate the respondent for the two weeks’ notice it had paid in lieu?

Background

The Applicant was employed as a process worker at the Respondent’s processing plant from 25 August 2017 until the termination of his employment on 18 January 2019. Throughout his employment, the Applicant was engaged as a casual employee – on a “regular and systematic” basis.

The Respondent submitted that the Applicant was counselled and disciplined throughout his employment for frequent lateness to commence work and for incorrectly packing poultry of a particular size into cartons labelled with a different size.

The Applicant was first spoken to about his late arrival for work on 29 November 2017, following three instances of lateness. He was issued a Written Warning for non-compliance with packing standards on 21 February 2018; and received a Final Written Warning on 7 November 2018 for non-compliance with packing standards, late arrivals and late returns to his workstation from meal or rest breaks.

The Respondent met with the Applicant on 22 November 2018 to discuss the Final Written Warning. The Respondent raised three issues with the Applicant: late arrivals, incorrect packing of product, and behaviour issues. The record of this discussion stated: “if this type of behaviour continues, the company will take disciplinary action and could lead to termination.”

The Respondent submitted that the Applicant subsequently arrived late to his workstation on 3, 4 and 15 January 2019 and left his workstation without permission from a team leader or supervisor on 4 and 17 January 2019.

On 18 January 2019, the Respondent invited the Applicant to show cause as to why his employment should not be terminated.

The Applicant submitted that he was one minute late on 3 January 2019 and that he had in fact, not been late to his workstation on 4 and 15 January 2019 as alleged by the Respondent. Further, he submitted that it was common practice for process workers to leave their workstations without informing a team leader, and he had acted in accordance with this practice on 4 and 17 January 2019 because he had needed to attend the toilet and was unable to find a supervisor.

The Applicant stated that it was common practice for his co-workers not to notify a supervisor or team leader when leaving their workstations. In his witness statement he submitted that:

everybody leaves their workstation on numerous occasions without telling their team leader;” and “Every day, someone would come up to me and say, “I’m going to the toilet” without telling their team leader.”

It was submitted that the evidence did not justify the warnings and that he had been treated differently to other employees, on the handling of these matters.

The Respondent submitted that it considered the Applicant’s responses at the meeting, but ultimately decided to terminate his employment on 18 January 2019. The Applicant received two weeks wages in lieu of notice.

Written warning

Notwithstanding the Applicant’s denial of the allegation that he had incorrectly packed a box on 6 February 2018, the Respondent issued the Applicant a Written Warning on 21 February 2018. The content of the warning was as follows:

“This is a WRITTEN WARNING for non-compliance to packing standards causing an error in orders which could have led to a serious customer complaint on the 6/2/18.

It is important all employees focus on the task at hand, if you are not sure of what is required Team Leaders are to assist. You have been trained in…Packing…requirements.

FUTURE BREACHES COULD RESULT IN FURTHER WARNINGS/OR TERMINATION.”

A handwritten note was added: “*PACKING INCORRECTLY N/O 11s INTO N/O 17 labelled cartons”

The Applicant wrote in the ‘Employee’s Response’ section:

I believe I didn’t do it. I don’t understand why I am getting a written warning when no one has gotten a warning for this befor.” (errors in original).

The Applicant submitted that on 6 November 2018 he was packing birds into a box labelled “14” when he approached by a team leader, who informed him that the birds he was packing were not the right size for a box labelled size 14. The Applicant pointed to the chute from which he was packing which was labelled “14”. He explained that he had asked and was told that all three chutes were for size 14 birds. The team leader informed the Applicant that this was incorrect.

At the meeting on 7 November 2018, the Applicant was told that he was receiving a Final Warning. The warning stated:

This is a FINAL WRITTEN WARNING for misconduct in non-compliance to packing standards and for late arrivals at the start of shift & returning from any meal or rest breaks.

You were observed packing two crates labelled Low Scold 14 with Neck out 10 birds, tying liner & pushing crates onto the GEMS belt.

This is an ongoing issue in the Whole bird packing area where people are not reading the labels & packing the wrong sized birds into the cartons or crates, resulting in customer complaints. You have been trained & signed off as competent on WB 009 Packing Whole Birds & Toolbox talks in regards to packing correctly & reading labels to ensure the product is packed to customer specifications.

You have also been cautioned on numerous occasions for late arrivals at the start of your shift & returning from break to your work area by the WB Supervisor & Team Leaders.

In accordance with the EBA signed & agreed on;

Clause 5.1.1(a) The following arrangements shall apply to the taking of breaks and rest periods.

‘Employees are to be at their workstation ready for work at the time nominated by the Company for commencing work. This includes at the commencement of work for the day and at the end of any meal or rest break.’

The ‘Employee’s Response’ section of the warning reads “DECLINED TO COMMENT.

The Record of Employee Discussion Form from the meeting on 22 November 2018 stated as follows:

“Due to a Final Warning being issued by your Manager/Supervisor, further discussion with you was required by the Production Manager to ensure you understand the severity of a Final warning. Any further breaches of non-performance compliances may result in termination of your employment with[the respondent].

Areas of discussion included;

  1. Late arrivals

This is your responsibility to ensure you are at your workstation ready for work at the time nominated by the Company for commencing work.

  1. Incorrect packing of product

Making sure you pack to Customer Specifications i.e. attention to detail, reading labels, packing correct amount of product, packing the correct sized birds.

  1. Work Performance in regards to behavior issues

In the past two months, you have had four formal complaints from different people in regards to your behavior. On two of these occasions there have been witnesses who have confirmed the complainants version of events.

Just this week you have had two new incidences, formal complaints in regards to your behavior. Once involved a WB team member & the second was the Canteen staff. This is the second complaint to come from the Canteen staff.

The Production Manager has made it clear to you that your Work performance & behavior towards others, being rude, abrupt & condescending will need to improve. If this type of behaviour continues, the company will take disciplinary action and could lead to termination.

Make sure you treat others in the way you would like to be treated & to walk away from confrontational matters.”

(errors in original)

The ‘Employee’s Response’ section of the warning was blank.

Show cause meeting

The Applicant submitted that he was told by his supervisor towards the end of his shift on 18 January 2019 to come with her to the management room as there was a meeting involving him. The Respondent’s Production Manager and the Production Supervisor attended the meeting; along with the Applicant and a union representative as his support person.

The Applicant was asked to explain why he had been late three times since his last warning. The Applicant submitted that he tried to explain that he had been having difficulties with the people he shared accommodation with, but he found it difficult to put into words how this had caused him to be late. The Applicant submitted that one of the people he lived with was “very difficult and unstable, and altercations of a morning would delay me leaving for work.”

The Applicant stated he told his Supervisor and Production Manager in the meeting that his accommodation situation was going to change and improve. He also stated that he tried to explain to [the supervisor] that on several occasions he had only been a few moments late and only metres from his workstation when he was due to start his shift, however, his [supervisor] “did not seem to be interested.”

Employee attendance measured by assigning a swipe card to each employee and requiring them to clock on and off at the start and end of their shifts by touching the swipe card against a card reader.

The Respondent submitted that it counselled the Applicant on numerous occasions in relation to his late attendance and made adjustments to his start time to assist him to attend work on time. However, the Applicant continued to be late.

The Respondent submitted that it had an internal absenteeism procedure which required employees to telephone an “Absence Hotline” before the start of their shift if they were going to be absent or late.

In summary, the respondent stated that it had difficulty with the Applicant’s time keeping but that the dismissal was based on the aggregate of the issues.

Importantly, the Production Manager for the Respondent gave evidence that that it would be rare for an employee to lose their job on the basis of a lack of punctuality, even though this was a significant issue when managing a workforce of some 1000 employees and the consequence of lateness meant increased pressure for others working on the chain of transitioning product, stating:

 “I don’t believe you should be allowed to sack someone or terminate someone’s employment for being late. That by itself, it’s not enough and should never be enough to do it”.

based on an analystic (sic) review of his performance as it is relevant to the disciplinary process at that time. So his final written warning absolutely plays part in that. The warnings before that also plays part in it, and the discussions that’s been had with him during that time which includes the coaching and/or the discussions that I’ve had with him subsequent to that.

The Respondent witnesses provided evidence that the consequences of incorrectly packaging heavier weight birds for customers, was that they had their cooking equipment was often programmed to cook birds of a particular weight. Accordingly, wrong packaging would result in the birds undercooked which may result in health concerns with chicken products. This could also lead to incorrectly recorded allergens, as well as from a business perspective, customer complaints for these errors or loss of business.

Commissioner Spencer finding:

The evidence of the Production Manager however, conceded that further reasons would normally be required to result in the termination of an employee. In the current matter the further reasons for the dismissal, the packaging issues and complaints of interactions were not firmly based on evidence. Therefore, as argued by the Applicant’s representative there is an unfairness with regard to the decision to terminate. It is agreed that the allegations supporting the termination have not been substantiated”.

The Commissioner also finding that:

“There was a lack of communication as to what specific incidents were relied on which undermined the Applicant’s opportunity to respond”. And

“The Written Warning dated 21 February 2018 was issued only for non-compliance to packing standards. It did not refer to lateness as a reason for the warning”.

The Commissioner’s findings are hopefully not a reflection that unfair dismissal applications are to be examined for every crossed t and dotted I, in that the term “procedural fairness” is to be doggedly followed:

“… I am satisfied that there was no valid reason and there were some associated procedural fairness issues in how the performance management was conducted and the dismissal implemented. The Applicant’s dismissal was harsh, unjust or unreasonable for the matters as set out, in relation to the reasons underpinning the dismissal”.

And every employer’s nightmare the applicant was reinstated to his former position – but with a sting:

  • The reinstatement would not occur until 14 days following this decision; and
  • There would be no compensation awarded for the lost time in between.