Paladino v The University of Melbourne [2026] FWC 559
KEY TAKEAWAYS
A recent Fair Work Commission decision serves as a timely reminder that a workplace investigation, no matter how thorough, cannot rescue a disciplinary process that is built on a weak evidentiary foundation, fails to put all allegations to the employee before dismissal, or substitutes for the performance management conversations that should have happened years earlier.
The decision offers a number of important reflections for workplace investigators and employers:
- Presenting new allegations during a Commission hearing that were not put to an employee for response before their employment was terminated is a major procedural failure.
- Whether substantiated allegations are considered separately or cumulatively to establish serious misconduct, the findings need to be sound, defensible and well-founded.
- Addressing conduct concerns early through performance management processes can reduce the risk of issues escalating into formal investigations, disciplinary outcomes and unfair dismissal applications in the Commission.
The case
A Professor with 27 years’ service at an Australian university was dismissed in February 2025 for serious misconduct after an external workplace investigation substantiated a pattern of behaviour that was ‘rude and disrespectful, micromanaging and controlling, dishonest, divisive, insubordinate and bullying’. The external investigation resulted in a report of over 180 pages.
The investigation findings and university’s disciplinary response were confirmed by an external review and dispute process. The Professor denied the allegations, lodging an unfair dismissal application in the Fair Work Commission.
The investigation and review process
The university appointed an external investigator in June 2023 to investigate allegations of inappropriate conduct made by three employees. The Professor was notified of the investigation in September 2023.
The investigator substantiated ten allegations and partially substantiated four. The Professor sought a review of the findings under the university’s Enterprise Agreement. The reviewer found the investigation findings were properly based and that while none of the conduct when considered in isolation was likely to be considered serious misconduct, when assessed in totality it could.
A provisional termination decision was made by the University’s Provost, on the basis that the totality of the conduct justified dismissal, rather than any single act of serious misconduct. The Professor disputed the decision, which was then reviewed by the Dispute Committee. The Committee found the process to be fair and the disciplinary action proportionate. Termination of the Professor’s employment was confirmed in February 2025. She was given six months’ pay in lieu of notice.
Commission findings
After reviewing each of the 33 allegations, the Commission found the Professor’s dismissal harsh, unjust, and unreasonable and ordered her reinstatement as a tenured Professor and to her substantive position.
The Commission found that the dismissal was disproportionate to the established conduct. The Commission noted:
‘That is not to say that [the Professor] was a good leader. My findings in relation to her conduct establishes that she was not without her failings as a leader, although they were not so serious as to justify her dismissal. Should she have handled particular situations better. Of course. Should she have had issues of concern held by her managers raised with her in a timely manner. Certainly. Should she have been given direct and clear feedback about areas for improvement in her leadership. Undoubtedly. Unfortunately, the University singularly failed to promptly raise issues of concern or provide clear feedback that would have assisted [the Professor] improve as a leader.’
The Commission’s findings were pointed and wide-ranging:
No valid reason established: Of the 33 allegations put forward at the Commission hearing more than 24 were fresh and had never been put to the Professor before her dismissal, and to which she had therefore never had an opportunity to respond. The Commission found this was a significant procedural failing under s 387(c) of the Fair Work Act 2009, which requires that an employee be given a reasonable opportunity to respond to the reasons for their dismissal before a decision is made. The Commission found only six allegations were substantiated, and none of the six, individually or collectively, rose to the level of serious misconduct or established a valid reason for dismissal. The Commission found that where the vast majority of allegations are not established on the evidence, the foundation for a totality argument collapses. As the Commission put it: ‘the much narrower range of findings I have made necessarily weakens the contention that [the Professor] engaged in an egregious pattern of conduct.’
Disproportionate outcome: The Commission found the dismissal harsh given the Professor’s 27-year unblemished record, seniority, and the university’s failure to implement any performance management process to address known leadership concerns before initiating a misconduct investigation.
Managerial failure compounded the injustice: A senior leader who held concerns about the Professor’s leadership dating back to at least mid-2022 – consistently failed to raise those concerns with her directly or document them in her performance review – a practice the Commission described as ‘extraordinary’. According to the Commission, had these concerns been addressed through clear feedback, professional development and a performance improvement plan, it might have averted the disciplinary process that led to the termination of the Professor’s employment.
Aged allegations given limited weight: Several allegations related to historical conduct (from as far back as 2016) that had never been formally reported at the time. The Commission gave these limited weight, noting that the passage of time affects both the quality of recollection and the fairness of relying on aged conduct.
Witness credibility concerns: The Commission found key witnesses displayed prejudice, selective memory, and in one case a lack of candour about pre-hearing contact with another witness. The Professor was found to be generally credible.
Unacceptably long period between allegations and outcome: The Commission described the 18-month investigation and disciplinary process as ‘unacceptably long by any standard’, but accepted that the number of allegations, the volume of evidence and the appeal steps taken by the Professor contributed to the delays.
Key learnings for investigators and employers
- Introducing fresh allegations at a Commission hearing, that have never been put to an employee before dismissal, is a serious procedural failure that will weigh heavily against an employer.
- Where an employer relies on a pattern of conduct, rather than a single serious act, the individual findings must collectively support the characterisation of misconduct. In this case, the university’s totality argument failed because 27 of 33 allegations were not substantiated. Whether substantiated allegations are considered separately or cumulatively to establish serious misconduct, the findings need to be sound, defensible and well-founded.
- A formal investigation should not be the first time an employee hears concerns about their conduct or leadership. Failure to use available performance management processes may result in findings of harshness, regardless of investigation outcomes. Document concerns, provide direct feedback, and use performance improvement processes early.
- Investigators should exercise caution when investigating historical allegations and consider: whether the conduct was raised at the time; whether there is any contemporaneous documentary evidence; and whether the passage of time has materially affected the reliability of witness recollections.
- Pre-existing relationships between witnesses and the reliability of a witness’s recollection are all relevant considerations that investigators should carefully weigh when making findings. In this case, undisclosed pre-hearing contact between two witnesses who had never worked together was a significant credibility issue. Investigators should consider asking witnesses whether they have discussed the matter with anyone else and probe any pre-existing grievances a witness may hold against the respondent.
More information
Q Workplace Solutions’ national team of legally qualified and licensed investigators is trusted by public and private organisations, including ASX-listed companies and government agencies, to investigate complex and often highly sensitive allegations of employee wrongdoing. They also undertake workplace reviews, and provide training, coaching and external advisory support to internal investigators. Visit our website for more information or to contact us.
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