Can an employee be fired for a single instance of misconduct?
Employers must be certain that they do not disproportionately punish an employee for a single instance of misconduct. This has been considered by the Fair Work Commission in two recent cases involving the dismissal of an employee with an otherwise unblemished employment record. In both of these decisions, the employer was found to have unfairly dismissed a staff member, despite clearly abhorrent behaviour by the employee. This highlights the importance of considering alternative disciplinary action and any known factors that may contribute to the misconduct before dismissing an employee.
Case Study 1: Solin v Chevron Australia Pty Ltd  FWC 2584
Robert Solin had been employed over three years as a production technician. During this time, he had an unblemished employment record. During his third year of employment, Solin was on a bus to Chevron’s Gorgon project on Western Australia’s Barrow Island when he told colleagues a story about a friend and his girlfriend, whom he referred to as “a young gin”. The story allegedly contained comments that were derogatory towards women, and included racial slurs against Aboriginals. An Aboriginal co-worker on the bus overheard the conversation and made a complaint to Chevron. The company immediately dismissed Solin for breaching their Anti-Discrimination Policy.
Before working for Chevron, Solin was employed by BHP Billiton as an indigenous employment adviser and later by Fortescue Metals Group as an indigenous development adviser between 2010 and 2013.
During the investigation, Solin admitted that he did say “gin” but maintained he thought that it was only derogatory if said directly to an Aboriginal woman. He claimed that he googled the term after the incident, and was surprised to learn it was a derogatory term, however it was used.
The Fair Work Commission found that while Chevron had a valid reason for sacking Solin, he ruled the dismissal as harsh and unreasonable. The decision was based on the fact that Solin:
- Had an otherwise unblemished employment record;
- Was apologetic for the statements he made;
- Had not realised others would overhear his comments; and
- Didn’t realise the comments were offensive.
Chevron was ordered to reinstate Solin, however the Commissioner did not award compensation for lost remuneration as Mr Solin had caused offence to employees and had a responsibility to comply with the company’s anti-discrimination policy.
Case Study 2: Jurgen Rust v Farstad Shipping (India Pacific) Pty Ltd T/A Farstad  FWC 3426
Rust was employed as a maritime officer at Farstad Shipping for sixteen years. In September 2016, Rust was subject to a random alcohol test before commencing a shift. Rust failed this test and was terminated for serious misconduct. Rust said that he had been feeling anxious before his shift because of a past incident that had occurred on the same ship.
In 2014, an investigation had been launched following allegations that Rust had made inappropriate comments during a safety committee meeting. Rust denied making the remarks but the investigation found the allegations to be substantiated. He was suspended for 10 weeks whilst the investigation was being conducted. When his suspension lifted, he was required to work with the same crew involved in the investigation and tension within the group remained. Rust wrote to the General Manager regarding his concerns that the matter remained unresolved, however his claims were unanswered.
In the proceedings, Rust stated that he had failed his alcohol test as he had been drinking quite heavily the night prior to his shift to calm himself down. He claimed that, on the night before the alcohol test, he had run into a crew member that had been involved in the 2014 incident.
The Fair Work Commission found that the dismissal was unfair, despite finding that Rust had committed a serious breach of the company’s blood alcohol policy. This was primarily due to Farstad Shipping’s failure to consider a less serious penalty and Rust’s sixteen-year unblemished employment history.
Despite the gravity of Rust’s conduct, the Commissioner found that Farstad Shipping’s consideration of penalties was binary as it was considered only dismissal or non-dismissal, which was considered to be too narrow in the circumstances.
Tips for employers
There are several factors that employers should consider before sacking an employee, including:
- Examine the employee’s employment history and whether this is the first instance of misconduct;
- Consider any alternative disciplinary actions that are available, for example, employers could consider making employees found to have engaged in misconduct in the preceding 12 months ineligible for bonuses, commission, pay rises and other benefits; and
- If you’re uncertain, seek advice from a solicitor.
If you believe that you may have been unfairly dismissed at work, we recommend speaking to an experienced solicitor for advice.