The proof is in the process
We examine two unfair dismissal decisions of the Fair Work Commission and their implications
Two recent unfair dismissal decisions of the Fair Work Commission highlight the importance of procedural fairness in the termination process.
As these decisions demonstrate, the absence of procedural fairness is likely to mean the dismissal is unfair, regardless of the existence of a valid reason.
David Lawless v Qantas Airways Limited  FWC 6456
Mr David Lawless commenced employment with Qantas in 1989 and, by 1991, was in the position of Airline Service Operator (ASO), for which baggage handling and related tasks are the main duties.
From 1997, Mr Lawless suffered from several work related injuries including injuries to his left elbow, neck and right shoulder, left and right ulnar nerves and lower back. After each injury Mr Lawless was able to continue as an ASO, working modified duties.
In mid-late 2012, due to the opening of a new airport terminal, Qantas advised Mr Lawless that it no longer required him to do most of the modified duties. From this time Mr Lawless was only required to do one of the modified duties: record the times of the first and last baggage arrival of each flight. This duty took about one and a half hours per shift.
Around this time the direction of Mr Lawless’ rehabilitation, as organised by the relevant workers compensation authority, moved from attempting to return Mr Lawless to work with Qantas, to finding Mr Lawless employment with another employer. Around the same time, Qantas had Mr Lawless attend a medical examination, after which the treating doctor concluded that Mr Lawless only had capacity to perform restricted duties, a situation which was unlikely to change in the future (Report).
On 14 May 2013, Qantas asked Mr Lawless to attend a meeting with his manager and a member of the human resources team. During this meeting Mr Lawless was given two letters:
- the first letter, dated 14 May 2013, referred to the Report’s conclusion that Mr Lawless was unable to return to his pre-injury role and advised reasonable accommodations could not be made to the role to enable Mr Lawless to perform it. In this letter, Qantas advised it was considering terminating Mr Lawless’ employment on medical grounds, and gave Mr Lawless seven days to ‘show cause’ why it should not continue with this course of action
- the second letter, dated 10 May 2013, was from a member of the Qantas workers compensation claims team and advised of Qantas’ intention to terminate Mr Lawless’ employment 28 days from the date of the letter (being the amount of notice required to be given by the South Australian workers compensation legislation).
Following this meeting there were various communications between Qantas and Mr Lawless’ representative, including a request by Mr Lawless’ representative for a copy of the Report. In this correspondence, Mr Lawless’ representative disputed the decision to terminate Mr Lawless’ employment, as expressed in Qantas’ letter to Mr Lawless dated 10 May 2013. Qantas was delayed in responding to the correspondence from Mr Lawless’ representative, and did not do so until Mr Lawless’ representative had written on two occasions.
On 11 July 2013 Qantas sent a letter of termination to Mr Lawless stating that Mr Lawless’ employment was terminated on medical grounds, effective immediately.
Findings of the Commission
While Deputy President Bartel found that Qantas had a valid reason for dismissing Mr Lawless it determined that:
- the confusion around the purpose and effect of the second letter
- Qantas’ failure to clarify the purpose and effect of the second letter when asked to do so by Mr Lawless’ solicitors and
- the short timeframe Qantas gave Mr Lawless to respond (with supporting medical evidence) to the proposal to dismiss him from his employment,
had resulted in Mr Lawless being denied a real opportunity to put a case in support of his ongoing employment.
Relevantly, Deputy President Bartel commented that the failure to provide Mr Lawless with an opportunity to respond to the reasons for the proposed termination of his employment was not diminished due to the fact the outcome would have been the same regardless.
As a consequence of the lack of procedural fairness afforded to Mr Lawless, Deputy President Bartel determined that the termination of his employment was harsh.
Doris Maree Pettitt v MicroAnalytix Pty Ltd  FWC 6595
Ms Pettitt commenced work with MicroAnalytix in 2007 as a Customer Service Officer. In 2009 MicroAnalytix agreed to vary Ms Pettitt’s working hours due to her ill health, and that of members of her family.
In July 2014, due to a change in operational requirements, MicroAnalytix attempted to change Ms Pettitt’s working hours back to the original arrangement. Ms Pettitt did not agree to this, and negotiations between the parties about Ms Pettitt’s working hours continued until Ms Pettitt experienced a severe emotional event in respect of the proposed change, and walked out of the workplace.
While there were attempts made by both MicroAnalytix and Ms Pettitt after this time to discuss a resolution to the dispute, none of these attempts were successful.
On 15 December 2014 MicroAnalytix wrote to Ms Pettitt terminating her employment, and explaining that Ms Pettitt’s employment was being terminated because she had been absent from work for a period greater than three months. In terminating on this basis, MicroAnalyitix erroneously construed a regulation in the Fair Work Regulations 2009 to mean that an employer has a valid reason to terminate an employee’s employment when the employee has been absent for more than three months. The regulation actually deals with when an absence due to illness or injury will no longer be considered 'temporary' (for general protections purposes) but does not, of itself, create a valid reason justifying termination. Ms Pettitt did not receive this letter until six days later.
Findings of the Commission
While Commissioner Cambridge considered that MicroAnalytix may have been able to establish a valid reason for the termination on the basis of Ms Pettitt’s incapacity to return to work, he ultimately found that MicroAnalytix’s ‘hasty and erroneous’ reliance on the relevant regulation meant there was no valid reason for the dismissal of Ms Pettitt.
Commissioner Cambridge also indicated the following actions of MicroAnalytix contributed to the dismissal of Ms Pettitt being harsh, unjust or unreasonable:
- as Ms Pettitt did not receive the termination letter until six days after it was sent, she was not notified of the reason for her dismissal until after the dismissal had taken place
- MicroAnalytix had not provided Ms Pettitt with an opportunity to respond to the proposed termination of her employment, or advise it of any factors which may have provided a basis for her to return to work in either the short or long term (a ‘show cause’ opportunity)
- the way in which MicroAnalytix implemented the termination (by letter) meant Ms Pettitt was denied an opportunity to have a support person present when receiving the news.
Lessons for employers
These cases highlight the importance of adopting a clear and fair process when engaging in discussions that may result in the termination of employment – even if the strength of the evidence indicates the likely result will be termination because the employee cannot perform the inherent requirements of their position, even with reasonable adjustments.
Specifically, while employers often remember to follow such processes in the case of misconduct or poor performance, these processes are sometimes overlooked when an employer receives comprehensive medical evidence indicating the employee is no longer able to perform the inherent requirements of their position, and no reasonable adjustments can be made.
These cases are a timely reminder that proper processes should be applied, and procedural fairness afforded, regardless of the reason an employee's employment may be terminated.
Long service portability in the Community Services Sector – an update
Scope and interpretation of the Long Service Benefits Portability Interim Regulations 2019
Plans, Masks, Records & Contact Tracing – What do Victorian Workplaces need to do from today?
Key directions for Victorian workplaces as outlined in the Workplace Directions (No 8).