The recent decision of the Queensland Industrial Relations Commission (the Commission) in Thomson-v-Brisbane City Council [2021] QIRC 429, delivered on 13 December 2021, highlights the key considerations an employer should make before determining to terminate an employee.
Thomson had been employed by Brisbane City Council (BCC) for 25 years as a building and tradesperson. He had not been subjected to any prior disciplinary process or performance management when he underwent random drug testing on 16 December 2020 as he reported for work. Thomson produced positive readings for alcohol of 0.026% initially and some twenty minutes later, 0.016%. He was issued with a show-cause letter based on his positive test results and ultimately terminated.
Thomson challenged his dismissal on the grounds it was harsh, unjust and unreasonable. BCC had determined that Thomson’s conduct was wilful, as he knew he would produce something other than a 0.00 blood alcohol level reading. However, the Commission found that this was not necessarily the case, but he ought to have been conscious there was some risk that he was more than 0.00% when he presented for work.
The Commission noted that any employee who engages in conduct that gives rise to risk of death or injury to themselves or others, ought to expect that in all but the most exceptional circumstances their conduct will likely warrant the termination of their employment. However, the subject case was a unique and finely balanced contest.
On the one hand, there was admitted conduct that could have had grave consequences for himself or others, but on the other hand, he had been an exemplary employee for 25 years who had shown contrition and demonstrated insight into the reasons the conduct was wrong. Whilst BCC had determined that the lack of excuse offered by Thomson somehow made his conduct more serious, the Commission determined it was an unconditional acknowledgement of his mistake and the decision-maker had not given proper weight to Thomson’s long tenure and his response to the show-cause notice.
The Commission determined, compelling mitigating factors were not given proper weight, nor was there appropriate evidence that the decision-maker had considered alternative disciplinary penalties. It also found, given the significant loss about to be inflicted on Thomson, the failure of the decision-maker to give him an opportunity to personally plead his case diluted the procedural fairness.
The Commission found the impact of the dismissal on Mr Thomson’s lifestyle was significant and given his unblemished 25-year work history and the unconditional, insightful and sincere apology, there were sufficiently compelling factors to mitigate the seriousness of the conduct and the decision to dismiss was harsh and unfair.
Whilst BCC argued that the relationship of trust between the parties had broken down, the Commission ordered reinstatement finding the only evidence to that effect was from the decision-maker and a number of conclusions reached overstated the true character of Thomson’s conduct and were not fair conclusions on the facts. As Thomson had brought the hardships of dismissal upon himself to a large degree, he was not awarded compensation.
Key Takeaways
This decision highlights:
- When terminating an employee, an employer must give due and careful consideration to the employee’s explanation and alternative penalties available, noting why the penalty of termination has been chosen.
- If termination is proposed, a personal meeting between the decision-maker and employee will assist in demonstrating procedural fairness/natural justice.
- Decision-makers should not assume that because an employee has done something, or failed to do something, that this was deliberate conduct.
- Careful weight should be given to an employee’s prior work history and tenure of employment.
If you are considering disciplining or dismissing an employee, and need advice contact our Brisbane & Toowoomba Employment Lawyers.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
