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April 2020

Procedurally and substantively fair process proves successful

Procedurally and substantively fair process proves successful

The case

Montes v The Star Casino (2020)

The Star Casino employed Mr Montes as a food and beverage server. The Star Casino dismissed Mr Montes for inappropriate conduct against a background of disciplinary action. Prior to his dismissal, Mr Montes:

  • received a written warning after sending inappropriate text messages to another employee;
  • was reminded of the conduct expected of him and was retrained twice in The Star Casino’s policies; and
  • was suspended on pay while The Star Casino investigated allegations against him, which included:
    • tapping another employee on the bottom with a serving tray;
    • making inappropriate complaints about an employee’s appearance; and
    • threatening a manager unless he took it easy on him.

The Star Casino investigated the allegations, gave Mr Montes an opportunity to respond and decided to terminate his employment.

Mr Montes made an unfair dismissal application to the Fair Work Commission (FWC), claiming his conduct was innocent and that the other employees’ reactions were unreasonable.

The verdict

The FWC dismissed Mr Montes claim, holding that The Star Casino had followed a procedurally and substantively fair process.

The lessons

The Star Casino’s success in this case was largely a result of the procedurally fair process it implemented to manage Mr Montes’ conduct, which included:

  • issuing a written warning;
  • reminding him about policy conduct requirements;
  • retraining;
  • a fair investigation process; and
  • providing Mr Montes with an opportunity to respond to allegations.

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