Employer runs 'fowl' of procedural fairness

On 7 May 2015, the VGSO hosted its seminar. 'An essential ingredient - Procedural fairness in workplace issues: a panel discussion', to a full house of Victorian government agency staff.  Our panel members, Jacqueline Parker, Assistant Victorian Government Solicitor, Joanne Kummrow, Special Counsel, Alice Felman, Principal Solicitor, Andrea Lester, Investigator and Jim McKenna, Barrister, provided insights into the key elements of procedural fairness in the workplace and the importance of conducting thorough and unbiased investigations.

That same week, the Fair Work Commission delivered its decision in Heidi Cannon v Poultry Harvesting Pty Ltd, a sobering example of the consequences of failing to afford procedural fairness.

The untimely demise of a number of chickens

Ms Cannon was dismissed from her employment with Poultry Harvesting for allegedly being intoxicated at work, and sleeping in a vehicle during her shift.  Her neglect of duties led to the 'smothering' of a number of chickens.

After her supervisor (Mr Germinian) received a call from a co-worker reporting that Ms Cannon was 'useless', and apparently intoxicated at work, he attended the site.  Upon being asked several times, Ms Cannon denied that she was intoxicated.  She was dismissed after her supervisor smelt alcohol on her breath.

Later that afternoon, Mr Germinian refused to reconsider Ms Cannon's dismissal on the basis that Ms Cannon had lied to him about her intoxication.  Mr Germinian relied on information from another employee that Ms Cannon's partner had advised him that Ms Cannon had been too intoxicated to drive to work.

Although Ms Cannon admitted to not driving to work because she was concerned she might be over 0.05 if breathalysed, she did not consider herself to be intoxicated.

Ms Cannon made an application to the Fair Work Commission for an unfair dismissal remedy.

No valid reason to dismiss

The FWC found that there was no valid reason for Ms Cannon's dismissal.  Its reasons included:

• Failure to investigate (no steps taken by employer to objectively assess Ms Cannon's condition and reliance on hearsay information about Ms Cannon's fitness to drive) 
• Failure to apply policies (employer did not follow requirements of its own policies which required employees to be stood down from work until they could work in a safe manner, to be issued with a written warning and to be advised of the availability of counselling)  
• Evidence did not support reason for dismissal (despite concerns that Ms Cannon's intoxication could cause a health and safety risk, Ms Cannon was permitted to work until the end of her shift).

No procedural fairness

The FWC also found that Ms Cannon had been denied procedural fairness as a result of a failure to provide her with an opportunity to respond to allegations or to warn her that she was not permitted to drink any amount of alcohol prior to her shift.  The FWC took into account the following:

• the lack of engagement with Ms Cannon about her views regarding the allegations that she was intoxicated or that she had lied about her alleged intoxication; and
• the lack of an opportunity for Ms Cannon to respond to the allegation by Mr Germinian that Ms Cannon had brought into the premises a can of alcoholic beverage that Mr Germinian found in the shed.  

The Cannon case highlights many of the key themes discussed at the VGSO seminar, including:

• ensuring employees are aware of the standards of behaviour to which they are being held to account, such as their obligations under relevant instruments (eg the Code of Conduct, the Public Administration Act 2004 or the VPS Determination); 
• following the requirements set out in policies or instruments with respect to the management of misconduct or performance processes;
• informing the employee, at the commencement of the process, of the potential outcomes and consequences for their employment; and
• providing a genuine opportunity for the employee to respond or to offer mitigating circumstances with respect to the allegations, the findings and the proposed outcome.

For further advice on your agency's obligations of procedural fairness in the workplace, please contact:

Romina Woll
Senior Solicitor
t  9032 3026
romina.woll@vgso.vic.gov.au

Vicki Moulatsiotis
Principal Solicitor
t  9032 3012
vicki.moulatsiotis@vgso.vic.gov.au