Ruth Collins & Jessie Poon, MDC Legal
The recent unfair dismissal case of Michael Treen v Adelaide Services Alliance T/A Allwater JV  FWC 2737 (Treen) highlights the need for employers to be consistent in their disciplinary action.
Several cases have highlighted the need to afford procedural fairness, such that even where a valid reason exists for the termination, the dismissal may nevertheless be held unfair because of the lack of procedural fairness. In the Treen case, Commissioner Platt found that Allwater had a valid reason to dismiss their employee, Mr Treen, but in context the dismissal was unfair because it was inconsistent with previous disciplinary action against comparable misconduct by other employees.
In December 2015 some Allwater employees, including Mr Treen, took industrial action. While travelling home from the rally Mr Treen left a message on the mobile phone of another employee who had not participated in the industrial action that said “Hi mate, just wondering if you are working. If you are, you’re a f*****g scab”.
Allwater investigated this conduct, and then summarily dismissed Mr Treen for misconduct.
Mr Treen brought an action for unfair dismissal against Allwater.
Commissioner Platt found that Mr Treen’s conduct did provide a valid reason for Allwater to terminate him. Whilst singular in nature, the Commissioner held that Mr Treen’s misconduct was “grossly inappropriate” and “flew in the face of employees’ choice as to their participation in industrial action”. Further, no issues of procedural fairness arose or were contested.
However, when other relevant matters were considered Commissioner Platt found that the dismissal was “a disproportionate response” to conduct that was out of character, and did not take proper account of Mr Treen’s good service and work performance. Further, Commissioner Platt found that the disciplinary outcome appeared to be “inconsistent with other similar matters”, namely the management of two previous matters, where employees investigated for similar misconduct were only given a final written warning.
Commissioner Platt considered “all of the above factors in totality” with no single factor being determinative. Ultimately, he concluded that the dismissal was harsh, unjust or unreasonable and ordered the reinstatement of Mr Treen.
This case highlights the importance of employers defending unfair dismissal claims being able to demonstrate that they took a thorough and considered approach when dismissing an employee for misconduct. In particular, it highlights the importance of not only affording due process, but also considering the previous conduct of an employee, the proportionality of the sanction to the misconduct, and whether the sanction is consistent with the previous treatment of similar matters.