If an employee is dismissed for misconduct and they can access Fair Work Act 2009 (Cth) unfair dismissal laws, a factor that might cause the dismissal to be ruled unfair is the failure to afford the employee procedural fairness. Giving the employee an opportunity to respond to the allegations against them is essential to procedural fairness. This requires that you disclose the full grounds for dismissal and give the employee sufficient opportunity to respond to them.

The denial of an employee’s opportunity to respond was the central issue in a case of unfair dismissal in Bartlett v Ingleburn Bus Services (2020). This case involved an employee who, following a string of instances of misconduct over the course of several years, was invited to attend a meeting with his employer.

The employee was asked to provide a verbal response to allegations about the latest incident of misconduct. After hearing the response, the employer terminated the employee’s employment for gross misconduct. The employee was provided with a termination letter signed by the employer, which had been dated 5 days before the meeting took place.

Verdict at first instance

The employee brought a claim for unfair dismissal by denial of procedural fairness. At first instance, the Fair Work Commission (FWC) rejected the claim for unfair dismissal. It found instead that the employee’s dismissal was based on valid reasons, and that he had not been denied procedural fairness in his dismissal.

The appeal

The employee appealed this decision on the following grounds:

• the date on the termination letter indicated that the decision to terminate his employment had been made before he was notified of the reason for his dismissal; and
• he had only been given the opportunity to respond to the most recent allegation of misconduct, but the decision to terminate his employment was based on repeated instances of misconduct.

The FWC Full Bench upheld the employee’s appeal but still found the dismissal was not unfair.

Was the employee afforded the opportunity to respond?

The first instance decision had found that the employee had the opportunity to respond to allegations about each incident of misconduct as they arose over the years preceding his dismissal. The Full Bench disagreed, and held instead that these opportunities did not equate to an opportunity to respond to the reason for his dismissal, which consisted of four incidents of misconduct considered collectively. The effect of this was that the employee did not have the opportunity to respond to the true reason for his dismissal.

The Full Bench described the employee’s opportunity to respond as “unfairly narrow in scope, because he did not know that his prior warnings for misconduct were being relied upon in connection with the decision to dismiss”. Had the employee been properly informed of the full reasons for the decision to dismiss him, he may have responded differently.

The Full Bench observed that it did not matter that the opportunity to address the full reasons for dismissal may not have made any difference to the ultimate outcome; it was enough that there existed a real possibility that the employee would have addressed the cumulative effect of his conduct when asked why his employment should not be terminated.

The Full Bench considered the employer’s failure to notify the employee of the full reasons for his dismissal, and to afford him an opportunity to respond, weighed in favour of a finding of unfair dismissal. It found that the consequences of the dismissal were significant for the employee, particularly given his age, length of service to the employer and financial position.

The verdict on appeal

Despite the lack of opportunity to respond, the Full Bench ruled that, because the employee had “engaged in a course of unacceptable conduct over a long period of time” and had demonstrated an “incapacity to accept responsibility for that behaviour and rectify his conduct” despite repeated warnings from his employer, this provided valid reason for the employee’s dismissal. The “cumulative result of a series of instances of misconduct over a sustained period of time” led to his employment becoming untenable, and ultimately outweighed the denials of procedural fairness in the manner of the employee’s dismissal.