Dangerous conduct, but dismissal still unfair

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Dangerous conduct, but dismissal still unfair

An employee who drove through a crossing as a bullet train rapidly approached was unfairly dismissed, the FWC has ruled.

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An employee who drove through a crossing as a bullet train rapidly approached was unfairly dismissed, the FWC has ruled. 

Facts and background


Darren Pericich was employed as a driver with Hanson Construction. He engaged in what his employer considered ‘dangerous’ conduct, by driving through a crossing as a train approached. He was immediately dismissed for doing so. 

Mr Pericich applied to the Fair Work Commission for an unfair dismissal remedy.

The law


Workers are generally protected from unfair dismissal under Part 3-2 of the Fair Work Act. A dismissal is unfair if it is harsh, unjust or unreasonable (s387). There are several criteria in deciding whether a decision is harsh and the first criterion is whether the decision was valid (s387a)). Other criteria include whether the worker was notified of the reason for the dismissal (s387(b)), and whether the worker was given an opportunity to respond to the reason (s387(c)). 

If a worker has been unfairly dismissed, the FWC may order the worker’s reinstatement or the payment of compensation (s390).

If reinstatement is not appropriate, the FWC may make an order for compensation.

In issue 


The question to be decided was whether Mr Pericich was entitled to reinstatement or payment of compensation for the unfair dismissal. 

Considerations and decision


Although the commission determined there was a valid reason for his dismissal, it found he was unfairly dismissed due to a lack of procedural fairness. For example, the allegations were not addressed with him before the dismissal and he was not given a proper opportunity to respond. 

Given Hanson Construction’s concerns about Mr Pericich’s behaviour, the FWC considered that reinstatement was an inappropriate remedy. In determining the amount of compensation, the commission considered a number of factors under s392(2). For example, the duration of Mr Pericich’s employment with Hanson Construction, the incident which led to Mr Pericich’s dismissal and the impact the order for compensation would have on Hanson Construction’s business.

It ordered Hanson Construction pay an amount of $10,951.87 to Mr Pericich for failing to provide a procedurally fair process in implementing the dismissal. 

The bottom line: An employer needs a valid reason to dismiss a worker. However, it also needs to provide a worker with a procedurally fair process in implementing the dismissal. This means an employer needs to notify the worker of the reason for the dismissal and give them an opportunity to respond. If the employer does not, it they may be ordered to reinstate the worker or pay compensation for unfairly dismissing them. 

Read the judgment 


Darren Pericich v Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials Pty Ltd 
 
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