Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.
It is important that when conducting a disciplinary process, employers ensure that they make a proportionate and genuine attempt to communicate with the employee on their alleged conduct.
In the recent decision of Mr Roger Woods v LifeFlight Australia Limited [2021] FWC 5464, the Fair Work Commission (FWC) was critical of an employer’s entirely email-based disciplinary process, stating that the lack of communication throughout, which consisted of nonverbal discussions with the employee, was procedurally unfair.
The employee was employed as a Rotary Wing Pilot for LifeFlight Australia Limited (the Employer). In accordance with the terms of their employment agreement, such pilots were to work either the Work Practice 1 Roster (WP1) or the Work Practice 2 Roster (WP2). The employee was originally engaged as a WP1 pilot.
In May 2020, the employee was moved to working WP2. In October 2020, the employee gave three months’ notice requesting that he be moved back to working WP1 as he had serious safety concerns about his fatigue.
The Employer wrote to the employee two months later informing him that it had an intention of issuing him a JobKeeper enabling direction (JED) under the Fair Work Act 2009 (Cth) (FW Act). Under this intended JED, the Employer ordered that the employee stay on the WP2 roster due to operational requirements in light of the COVID-19 pandemic.
The employee responded to the Employer in a series of emails, stating that he did not accept the JED as a lawful workplace direction and refused to continue to work on WP2.
The Employer responded to the employee giving him a first and final warning, citing his emails as “offensive” and “disrespectful”. The Employer extracted 22 examples from the employee’s emails which it considered to be contrary to its Code of Conduct (the Code) and Discrimination, Sexual Harassment and Bullying Policy (the Policy).
The employee responded to the first and final warning via email, stating that the Employer had no grounds for issuing him a warning and if it was to go before the FWC, it would be “laughed out of chambers”.
The Employer considered the tone and language of the employee to again be unacceptable and responded asking him to show cause as to why his employment should not be terminated.
The Employer considered the employee’s response and ultimately decided to dismiss him for failing to comply with a reasonable and lawful direction and breaching its Code and Policy. The employee subsequently made an application of unfair dismissal, claiming that the Employer deeming his tone and language as misconduct warranting dismissal was excessive, unreasonable and disproportionately harsh and unjust.
Looking to the tone and language used by the employee, the FWC acknowledged that while it was “deliberately confrontational” and “smart alec”, it appeared to be a common scenario between the parties in an adversarial industrial relationship.
The FWC found that issuing a first and final warning based on the employee’s tone and language was premature and that the employee’s behaviour did not amount to repeated and unreasonable behaviour to warrant dismissal. Therefore, the FWC was not satisfied that the employee had breached the Employer’s Code and Policy.
The FWC was also critical of the Employer for not engaging in any face-to-face discussion with the employee when he raised his genuine safety concerns, and instead issued him with a JED via correspondence. In relation to the JED, the FWC found that the Employer did not provide adequate consultation as is required under the FW Act.
The FWC stated that even if the operational requirements of the business made it impossible to meet an employee in certain circumstances, then a meeting should have been conducted via other means, such as by video conference or telephone call.
The FWC found that as no consultation occurred in relation to the JED, it was therefore unfair for the Employer to rely on the employee’s refusal to comply with it in the final warning issued to the employee and subsequent dismissal.
The FWC held that the JED correspondence, along with the correspondence throughout the disciplinary process, was in relation to contentious issues that would ordinarily require the Employer to have a verbal conversation or hold a meeting with the employee. Since this did not occur, the FWC found the disciplinary process to be procedurally unfair.
For the above reasons, the FWC found that the Employer did not have a valid reason for dismissal to terminate the employee and therefore, the dismissal was harsh and unfair.
The FWC rejected the employee’s proposal for reinstatement due to the loss and trust in the employment relationship and ordered the Employer pay the employee four months’ pay, totalling to $33,320.00.
Lessons for employers
This decision confirms the FWC’s preference for disciplinary meetings to take place in person, as far as practicably possible, in order to ensure procedural fairness is afforded. In this case, having discussions with the employee (in the FWC’s view) could have potentially salvaged the deteriorating employment relationship and provided a procedurally fair disciplinary process.
While meeting face-to-face may not be realistic during the current COVID-19 pandemic, employers should still arrange means in which there can be verbal communication, for example, via telephone or other audio-visual means.
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