In the recent decision of Pierce Field v Department Of Finance [2022] FWC 1619 (24 June 2022), the Fair Work Commission (FWC) found that procedural deficiencies (including dismissal via email) and the denial of natural justice outweigh instances where dismissal could otherwise be considered valid.

Background

Pierce Field (the Applicant) worked as an Electorate Officer for Senator the Honourable Kristina Keneally (Senator Keneally) of the Australian Labor Party (ALP) (as she then was) at the Department of Finance (the Respondent). The Applicant had been employed to work for Senator Keneally for almost 1.5 years.

There were several performance and conduct issues which raised concern for the Chief of Staff during the Applicant’s employment. However, these issues were not the subject of any written warning. Instead, they culminated in a tense meeting on 19 October 2021.

The following day on 20 October 2021, the Applicant had a conversation with Ms Natalie Baini (Ms Baini), a Liberal Party staffer.  Ms Baini was known to the Applicant as she had been an unsuccessful candidate seeking Liberal Party preselection to replace the former Member for the seat of Reid, Mr Craig Laundy (Mr Laundy). Ms Baini had previously discussed with the Applicant details of allegations she had raised about the conduct of Mr Laundy, that also included the alleged exercise of coercive control over Ms Baini. Ms Baini claimed that Mr Laundy was motivated by the breakup of their alleged personal relationship.

The Applicant contacted Mr Laundy and a tense conversation occurred. The Applicant also sent text messages to Mr Laundy saying that he (the Applicant) had received damning evidence against Mr Laundy.

Mr Laundy then reported the matter to Senator Keneally. Senator Keneally apologised and advised Mr Laundy that she was appalled by the Applicant’s conduct and would deal with the matter. Senator Keneally asked Mr Laundy to send screenshots of the messages sent by the Applicant and obtained advice from the Ministerial and Parliamentary Services branch of the Department of Finance before informing her chief of staff she had made a final decision to summarily dismiss the Applicant.

The Applicant was emailed a termination letter from Senator Keneally which referred to the Applicant’s communications with Mr Laundy as causing a “serious and imminent risk to the reputation” of her office and constituted serious misconduct warranting his summarily dismissal.

The Applicant then filed a claim for unfair dismissal seeking a remedy of financial compensation. The Applicant’s lawyers submitted that the Applicant’s summary dismissal was harsh, unjust and unreasonable because his dismissal was made:

• without a valid reason; and

• via a procedurally deficient process.

Finding

The FWC stated that the actions of the Applicant involving his communications with Mr Laundy represented a valid reason for his dismissal. However, the FWC also found that the circumstances of the case did not establish a justification for the notification of dismissal to be made by email.

The Respondent submitted that it was reasonable to not provide the Applicant with an opportunity to respond to the decision to terminate his employment in circumstances where:

• his serious misconduct had been evidenced; and

• the Applicant had recently expressed significant dissatisfaction with his job.

The FWC said that the nature of the misconduct upon which a valid reason for dismissal was established must be balanced against the ‘”manifest” and egregious procedural deficiencies”.

The FWC found that “the procedure that the employer adopted whereby it hastily moved to summarily dismiss the Applicant, and it consciously deprived the Applicant of any opportunity to be heard” was a significant procedural defect which denied the Applicant natural justice.

Ultimately, while the FWC concluded that the Applicant was dismissed for a valid reason, the significant procedural defects relating to the determination and implementation of the Applicant’s dismissal rendered the summary dismissal as harsh and unjust. Consequently, the Applicant’s dismissal was found to have been unfair.

The Applicant was not reinstated but was issued with monetary compensation.

Key Lessons

• Employers should generally avoid terminating employees’ employment via email or SMS.

• Employers should adopt a cautious approach when considering dismissal, (even for summary dismissal matters) and ensure the employee is given an opportunity to respond to the allegations.

• Where necessary, employers should seek independent advice and / or consider a proper investigation prior to deciding to dismiss an employee.

Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au                                                                                                            

Katherine Dennis
Principal Lawyer
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au