FWC Determines Summary Dismissal of Supervisory Employee to be Unfair

The Fair Work Commission has determined that the decision to summarily dismiss a long-term supervisory employee for undertaking an unauthorised survey was unwarranted and, therefore, unfair.

The Team Leader Fitter (TLF) had been employed by TL Engineering Pty Ltd (the Company) from February 2014 until he was notified of his dismissal on 23 March 2022. The Company specialises in building high-quality vehicle upgrades of special commercial, industrial, fleet, and recreational vehicles and employed approximately 70 people at the time of the TLF's dismissal.

In November or December 2021, the Company's Managing Director asked workshop employees at their regular monthly meeting whether they might be interested in moving to a four-day work week, spanning Monday to Thursday, with Friday and Saturday becoming available for overtime. Over the next month or so, there was considerable chatter amongst the workers concerning the pros and cons of the proposed roster.

In January 2022, the Managing Director and the Operations Manager met with the TLF in his supervisory role seeking his opinion on the best way to explain to everyone what they were proposing and what the process involved. He suggested breaking into small groups so everyone would get an opportunity to listen and ask questions, and his suggestion was rolled out in late January and early February 2022.

Over the next 4-6 weeks, the TLF was alerted to varying concerns from workers about the impact of the proposed change, including the availability of overtime, whether the roster was optional, and whether it would encompass the needs of people with school-aged children. On 4 March 2022, a Trial Letter was handed out explaining the commencement of a three-month trial of the proposed 4-day work week.

In response to what he perceived as significant opposition to the proposal from the shop floor, the TLF decided that he would conduct his own survey to see whether the workforce was "For or Against" the 4-day week. At no stage did he make the management team aware of his survey.

On 18 March 2022, the TLF handed his survey results to the Managing Director. When asked who had surveyed the employees, he responded that he had, on the basis that there was considerable workshop chatter indicating dwindling support for the proposal. A Show Cause process commenced leading to his summary dismissal for serious misconduct on 23 March 2022.

Commissioner Bruce Williams agreed that the employee's survey was unauthorised as he had not consulted or sought authority from management prior to its distribution. He also noted that the TLF was aware of the considerable time and effort management had put in to make employees aware of the proposed roster change.

Whilst accepting that this amounted to a valid reason for dismissal, the Commissioner did not accept that TLF's conduct amounted to serious misconduct. As he noted,

"The Commission accepts Mr (C's) evidence that he undertook the staff survey because he was genuinely concerned there may not have been as much support amongst employees for the alternative hours proposal as the respondent believed…The Commission characterises Mr (C's) actions as well intentioned but ill considered".

Combined with the employee's 8-year service and unblemished disciplinary record, Commissioner Williams determined that,

"While the applicant's behaviour was deliberate, it is not the case that it was clearly inconsistent with the continuation of the contract of employment".

Noting that the TLF had gained employment elsewhere and that hence reinstatement was not an appropriate remedy, he ordered the Company to pay out the TLF's contractual notice period of 4- weeks, amounting to $4864 gross.

For queries about implementing roster changes, consulting with employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.