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
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
- 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 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:
t 9032 3026
t 9032 3012