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Case note: Common sense trumps policy awareness, but procedural fairness trumps them both

In the matter of St Marys Rugby League Club Ltd – [2024] FWC 246 (30 January 2024)

The findings and observations published in a recent Fair Work Commission (FWC) decision offer a timely reminder for legal, HR and HSE advisors, and workplace investigators of the importance of procedural fairness and the need for common sense when it comes to standards of appropriate conduct in the workplace.

The facts

In July 2023, a hospitality worker made an application to the FWC for an unfair dismissal remedy against his employer – a NSW not-for-profit licensed club. 

The worker contended: there was no valid reason for his dismissal; that he had not been notified of a reason or given an opportunity to respond; and his employer had failed to afford him procedural fairness and “a fair go all round”.

The employer terminated the worker in June 2023 as a result of “ongoing workplace conflict” and breaching its sexual harassment and bullying policies.

The FWC found the employer had a valid reason for dismissing the worker and accepted the evidence that the worker swore and shouted at his colleagues, made derisive or accusatory comments to a co-worker about another co-worker, and made sexually harassing comments over a six-month period.

However, ultimately the worker’s application was successful because of the employer’s failures to afford procedural fairness.

Procedural deficiencies

After considering the evidence, Deputy President Grayson made a range of findings critical of the employer’s complaint handling, investigation and disciplinary processes, including:

  • the employer failed to investigate several incidents raised by employees including the worker’s initial complaint
  • the employer failed to appropriately manage escalating tensions between the worker and his colleague
  • on the two occasions the employer wrote to the worker about his alleged misconduct, the employer did not, specify “in explicit and plain and clear terms what the conduct being investigated was” nor did it put any formal allegations, nor evidence obtained to the worker for him to consider and reply to prior to dismissal
  • the employer did not put the worker on notice that his alleged conduct constituted misconduct or constituted a breach of his employment contract or the employer’s policies
  • the worker was not notified his employment was in jeopardy, nor given an opportunity to respond to the reason for dismissal, and the employer’s decision to dismiss the worker was predetermined.
Some things are just common sense

However, employers can take some comfort from further observations made by the Deputy President that although the onus rests on an employer to demonstrate it has made employees aware of, and trained them in, the contents of its workplace policies and procedures, even if this cannot be established, a valid reason for dismissal can still be founded on common sense basic standards of appropriate conduct at work. In the Deputy President’s words:

Even if the Applicant was completely unaware of the content of the Respondent’s policies prohibiting bullying and sexual harassment, I do not consider this to be sufficient to find that this conduct was not a valid reason for his dismissal considering the seriousness of the conduct.”

The Deputy President cited O’Keefe, Damian v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys – [2011] FWA 5311 and held “even if insulting conduct is not expressly prohibited by an employer’s policy, common sense dictates a basic standard of appropriate workplace conduct.”

In addition the Deputy President also relied upon  Little, Cameron v Credit Corp Group Limited T/A Credit Corp Group [2013] FWC 9642 where the FWC found: “Even if the Respondent had no policies or a Code of Conduct directly addressing the applicant’s actions, it would be of no consequence. One hardly needs written policies or codes of conduct to understand and appreciate’’ behaviour that is offensive and likely to cause harm or humiliation.

A reminder about procedural fairness

Relevantly for those involved in handling employee complaints, investigations and disciplinary procedures, this decision is a cautionary tale of the importance of operationalising appropriate complaint handling policies and procedures.  The Deputy President described the employer’s investigations as “deficient”, stating:

“No investigation had been conducted into the incidents on 22 January 2023, 31 March 2023, or the out-of-hours incident on 13 May 2023 […]. The Respondent is a business of considerable size and employs dedicated human resources staff. It did not put into evidence any policy which dealt with the procedures to be adopted where conduct issues arise and are being investigated. The procedures that it adopted were deficient, ad hoc, lacked transparency and lacking in procedural fairness. This weighs in favour of a finding that the dismissal was harsh, unjust and/or unreasonable.

Lessons for employers
  • Complaint handling, investigation and disciplinary processes should be well documented, transparent and regularly assessed against best practice standards.
  • It is critical to triage complaints, address conduct detrimental to good working relationships and, where appropriate, undertake a thorough and procedurally fair investigation.
  • Employee training in workplace bullying and sexual harassment policies should be undertaken regularly and records maintained.
  • An employee accused of wrongdoing, and potentially subject to disciplinary action, ought to be apprised of the matters against them “in explicit and plain and clear terms” (as noted by the Deputy President) and given an opportunity to respond to those matters.  Although, this does not necessarily mean that allegations will detail specific breaches of an employer’s policies, especially when the alleged wrongdoing does not reflect common sense standards of appropriate workplace conduct or when the workplace investigator has not been instructed to make findings that alleged misconduct constitutes a breach of a particular policy.

The final outcome in this matter will be known once the Deputy President hands down her decision on remedies.


More information

Q Workplace Solutions’ highly experienced team of legally trained investigators, who are trusted by top law firms, ASX-listed companies and public and private employers to investigate highly sensitive and complex matters, have documented their best practice approaches in the recognised professional bible, Workplace Investigations: Principles and Practice (2nd Edition).

They also run practical in-person and online structured workshops and bespoke training sessions that unpack how to conduct an effective workplace investigation as well as how to approach and conduct investigations into sexual harassment and whistleblower complaints.

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