It might be said that procedure is 9/10ths of the law when it comes to unfair dismissal. In Horgan v Asia Pacific International College Pty Ltd [2015] FWC 5842, the Fair Work Commission (the Commission) ruled that despite the fact an Employee’s shocking behaviour constituted good grounds for termination, the dismissal was still unfair.

Horgan v Asia Pacific International College Pty Ltd [2015] FWC 5842

Dr Horgan was employed as a course coordinator at the Asia Pacific International College (APIC). During his time at APIC, Dr Horgan experienced frequent tension with management and IT staff. In one of a series of emails, he wrote that the IT systems, ‘are crap for people in Melbourne … Could somebody do the job properly?’ Not content to direct his complaint to IT staff alone, he CC’d a number of other APIC staff as an act of public retribution.

In another public email, Dr Horgan wrote to his supervisor that, ‘I suggest that you get staff that can do their job instead of defending them.’ The Commission noted that many of his communications with students of APIC were ‘sarcastic and accusatory’ and of an unsatisfactory standard of behaviour.

The Commission found that there was no reasonable excuse for Dr Horgan’s communications, which were destructive to the employment relationship. On this basis, the Commission concluded that there was a valid reason for termination.

However, in deciding to terminate his employment, APIC gave no reasons for why he was being terminated. Dr Horgan was also denied any opportunity to respond to the allegations made against him by his Employer. The Commission noted that while Dr Horgan may not have supplied a sensible or constructive response to the allegations, there was a real possibility that he could have. He was therefore denied procedural fairness in the termination process. The Commission concluded that Dr Horgan’s dismissal was unfair.

Additionally, Dr Horgan had repeatedly requested for investigations into allegations made against him by students of APIC. His supervisor failed to do so, believing that the matter had resolved itself. The Commission decided to the contrary, stating that Dr Horgan’s judgment was clouded by the fact that the matter remained unresolved. This contributed to the harshness of the decision to terminate his employment.

As Dr Horgan’s employment was for a relatively short period of time – 7 months the remedy that could be sought was always likely to be smaller. In any event, Dr Horgan was still awarded 4 weeks pay (more than he would be eligible under legislation).

More importantly however, for APIC as the matter is now on public record, as an example, when googling the search term “Asia Pacific International College Pty Ltd” this case appears on page 2. The negative publicity generated by such matters cannot be understated.

Tips for Employers

  1. You should not accept unprofessional behaviour from staff. Where your Employees have repeatedly misbehaved and contravened your orders to cease the behaviour, you will likely have good grounds for termination.
  2. Attempt to resolve any issues in your workplace as quickly as possible. Addressing an issue before it spirals out of control may allow you to maintain a more harmonious workplace and reduce the likelihood of litigation.
  3. It is essential that you follow a show cause process prior to sacking your Employees. Not only will this limit your potential liability, but it will also demonstrate that you respect the opinions of all Employees and may allow you to determine the root cause of an issue.

NB Lawyers offer a legal consultation to all Employers.

NB Lawyers – Employment Lawyers are Employment Law experts. If you are interested in learning more about show cause processes or unfair dismissals, please contact Jonathan Mamaril, Principal & Director, on 07 3876 5111 or via email at jonathanm@nb-lawyers.com.au.

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