A recent Fair Work Commission (FWC) decision highlights why businesses must follow fair dismissal procedures and communicate clearly with workers, especially when cultural or language barriers exist.
What happened in this case?
A dairy business dismissed a food processing worker by email, giving one week’s notice and stating he was not suited to the role.
The employee, who had limited English, was not warned in advance, given clear reasons, or provided an opportunity to respond.
While the employer claimed there had been ongoing concerns about behaviour, there were no written records of complaints, investigations or supporting evidence.
Why was the dismissal unfair?
The The Commission found the dismissal to be harsh, unjust and unreasonable under the Fair Work Act 2009.
Key issues included:
- No valid reason was clearly established. There was no documented evidence of conduct serious enough to warrant dismissal.
- No opportunity to respond. The worker was not told of the specific allegations or given a chance to explain.
- No support person. Due to no meeting taking place, the worker could not bring a support person to any discussion about his dismissal.
- HR experience didn’t excuse poor process. The business was medium-sized, had a dedicated HR manager and should have known the correct procedure.
- Language and cultural barriers were not addressed. The worker’s limited English meant directions and warnings may not have been fully understood.
As a result, the worker was reinstated and awarded $18,035.56 in lost wages.
What do employers need to do before dismissing an employee?
- Document everything: Keep detailed written records of meetings with employees, complaints received, warnings and investigations.
- Give notice and the right to respond: Clearly explain the reasons for potential dismissal, allow the employee to respond, and consider their response before making a decision.
- Allow a support person: Offer the employee the chance to have someone present in any disciplinary meetings, including the outcome meeting.
- Be mindful of language and culture: Ensure employees understand expectations and warnings, especially where English is limited.
- Always follow a fair process: You must follow proper dismissal procedures to ensure the decision is lawful and defensible.
Why documentation is critical?
One of the biggest issues in this case was the lack of evidence. Without records of:
- complaints;
- warnings;
- meetings; and
- investigations, the employer could not demonstrate a valid reason for dismissal
If it’s not documented, it becomes very difficult to defend.
What are the risks of getting this wrong?
If a fair process is not followed, employers may face:
- Reinstatement orders.
- Compensation payments.
- Unfair dismissal claims.
- Legal and reputational risk.
These outcomes are often avoidable with a structured and well-documented approach.
No matter what type of business you run, you must follow the applicable industrial relations laws when ending employment.
All businesses are required to ensure procedural fairness in the termination process, whether governed by the Fair Work Act 2009 (Cth) under the Federal system or the Western Australian Industrial Relations Commission (WAIRC) system under the WA State system.
A well-documented, transparent process protects both the business and the worker, and avoids costly reinstatement orders and compensation.
If you’re dealing with performance or conduct issues, or are unsure how to approach a dismissal, it’s worth getting the process right from the outset.
Our team can help you:
- Manage underperformance and misconduct.
- Structure fair and compliant processes.
- Review your documentation and contracts.
- Reduce the risk of claims or disputes.
To discuss your situation, contact us on (08) 9316 9896 or get in touch.
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