The recent decision of Rust v Farstad Shipping (Indian Pacific) Pty Ltd  FWC 3426, is a timely reminder to employers that seek to terminate an employee for a series of misconduct events.
Workplace Investigation Opened...
In this case, the employee, a captain of a ship, had been investigated for misconduct in 2014 and then again in 2016. An investigation in relation to the 2014 conduct was undertaken at the time but never closed. An investigation was again undertaken in 2016 following another incident of misconduct by the employee. Based on the investigation of the 2016 incident, the employer terminated the employee because of repeated misconduct (2014 and 2016) in the workplace.
Unfair Dismissal Claim
The employee made an unfair dismissal claim, alleging that the termination was unfair because the 2016 misconduct was isolated and he was not aware of any prior misconduct findings. The Fair Work Commission accepted the claim and ordered compensation, because whilst there had been two years between each incident, the employer;
- never formally resolved the 2014 misconduct investigation;
- never informed the employee of the outcome of the 2014 investigation;
- never gave the employee notice of the impact of the 2014 investigation on his employment status.
A simple letter confirming the outcome of the first misconduct investigation would have saved the employer a lot of trouble and the pain of paying compensation.
If you need assistance or advice on dealing with employee misconduct investigations, then contact Adam Foster at Lewis Holdway Lawyers on 9629 9629 or click here to find out more about Unfair Dismissal.