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March 2021

Summary dismissal deemed unfair despite a valid reason for dismissal

Summary dismissal deemed unfair despite a valid reason for dismissal

The Case

Lupson v Australian Pacific Airports (Melbourne) Pty Ltd (2020)

Australia Pacific Airports (Melbourne) Pty Ltd (Australia Pacific) employed Mr Lupson as an Electrical Supply Team Member in November 2011.

In May 2019, Mr Lupson took a long period of personal leave because of a non-work-related injury, but he continued to act as a union delegate during this time. On 23 January 2020, Mr Lupson returned to work, but was stood down on pay because his aviation clearance (known as an ASIC) had expired.

Between 24 January 2020 and 12 March 2020, Australia Pacific investigated Mr Lupson’s conduct. Mr Lupson attended three meetings as part of the investigation process. On 24 February 2020, Australia Pacific received a complaint against Mr Lupson about how he had conducted himself at the funeral of a Melbourne Airport employee.

On 20 February 2020, 24 February 2020 and 3 March 2020, Australia Pacific issued Mr Lupson with show cause letters. Mr Lupson provided a medical certificate and requested an extension of time until midday on 13 March 2020 to respond. When Australia Pacific did not receive a response, it telephoned Mr Lupson, who could not be contacted.

On 13 March 2020, Australia Pacific summarily terminated Mr Lupson’s employment based on six out of 12 of the allegations made against him.

Mr Lupson lodged an unfair dismissal claim in the Fair Work Commission (FWC).

The Verdict

The FWC held that aspects of Mr Lupson’s actions were valid reasons for dismissal, including his attendance at Australia Pacific premises without a valid ASIC, and copying Australia Pacific confidential information onto a USB and removing it from the workplace without authorisation. However, other grounds used by Australia Pacific to justify the summary dismissal were found not to be substantiated. While there was a valid reason for dismissal (which Mr Lupson was notified of and given an opportunity to respond to), the FWC held that the summary dismissal was not justified because of:

  • the absence of an established pattern of conduct;
  • Mr Lupson’s 8 years of service; and
  • Australia Pacific’s approach to the investigation.

Mr Lupson received $8,384.67 gross plus superannuation as compensation, that being equivalent to the notice period he was not paid on employment termination.

The Lessons

This case demonstrates that the procedure followed during an investigation is just as important as having a valid reason for dismissal. It is important to have “sound, defensible and well founded” reasons for dismissal, otherwise it may compromise the entire investigation process. Once those reasons are identified and the employee is given an opportunity to respond, a determination has to be made about whether or not valid termination can be done by notice or on a summary basis. The FWC will closely scrutinise summary dismissals.

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