By Charles Power

If an employer arranges a meeting with an employee to give the employee a chance to respond to allegations of misconduct, it is important the employer not prejudge the outcome of that meeting. If there is evidence that the employer was not genuinely prepared to listen to the employee’s responses and to take these into account before making a decision as to whether dismissal was appropriate, the resulting dismissal is open to challenge as an unfair dismissal.

In Boulton v Telstra Corporation Limited (2019), a sales person with 14 years’ service who worked remotely in Cairns challenged the fairness of his dismissal on this, among other grounds.

The manager flew to the show cause meeting with a prepared letter of termination. However, the Fair Work Commission (FWC) accepted manager’s evidence, this was ‘a matter of convenience rather than to pre-determine the outcome of the discussions that had been organised’.

The employee was dismissed for running a personal side business in breach of the employer’s conflict of interest policy and lying during the investigation.

The FWC ruled the out-of-work private sales of mobile phone sets had sufficient connection with his employment duties, being retailing mobile phones. These out-of-hours activities amounted to competition and a conflict of interest.

The employee’s conduct and further dishonesty in the disciplinary interviews supported the employer’s claim that it had lost trust and confidence in him, given his work in Cairns required him to work remotely from his manager.

The FWC acknowledged there was some tension in the asserted loss of confidence and the fact the employer waited three months to dismiss the employee. However, this was because of the employee’s evasiveness and refusal to acknowledge his wrongdoing.

The FWC ruled the employee’s breach of policy and dishonesty during the investigation was inconsistent with continuing employment, and provided a valid reason for dismissal. If the employee had been open and transparent during the investigation, the dismissal may have been unfair.