COMMISSION FINDS DISMISSAL TO BE FAIR DUE TO MISCONDUCT
Over the past year, the Fair Work Commission in Victoria has been inundated with claims associated to COVID-19 and new policy and procedures that employers have enacted in order to create a COVID-Safe environment.
A casual disability worker in Victoria claimed she was unfairly dismissed by her employer when she breached the temperature check procedure after recording a high temperature but continued to commence her shift. The Fair work Commission found that this was a valid reason for dismissal and was duly satisfied that the dismissal was not harsh, unjust or unreasonable. Fair Work Victoria, presided by Deputy President Mansini, heard the case of Fesshatsyen v Mambourin Enterprises Ltd  FWC 1244 on 9 March 2021.
Context is important when it comes to workplace disputes. In 2020, Victoria suffered its fair share of COVID-19 cases and outbreaks in health facilities. The media scrutinised the public health response to a great extent. Therefore, when Company’s put in place protective measures against COVID-19, Fair Work in Victoria found no reason for there to been an unfair dismissal case, as the worker would have willfully been aware of the need to comply with such regulations and to take precautions when working in a vulnerable setting.
The Fair work Commission in Victoria must establish whether serious misconduct was willful or deliberate and is inconsistent with the continuation of employment with the employer. This is because the disability worker’s contract stipulated terms that required its employees to adhere to certain health and safety policies. The commission was satisfied that this constituted a valid reason for dismissal in regards to conduct and was not harsh, unjust or unreasonable and therefore, the Applicant was not unfairly dismissed.
More cases of serious misconduct in Victoria
Another case in Victoria, where serious misconduct resulted in a dismissal was the case of Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College  FWC 2341. The Applicant was dismissed in February 2020 for serious misconduct involving inappropriate conduct of a sexual nature towards student both physical and verbal. Furthermore, the difference in this case was that the Applicant had previously received warnings for conduct of a similar nature when he posted on social media. The Commission did find that the investigation process was unfair and did not comply with procedural fairness. However, Fair Work Victoria, found that the Applicant’s ‘lack of insight into the conduct and failure to take responsibility’ outweighed the procedural unfairness. Therefore, the dismissal was concluded to be neither harsh, unjust nor unreasonable.
It should also be noted that as per Briginshaw v Briginshaw, the standard of proof remains to be on the balance of probabilities, however, the more serious the alleged misconduct, the stronger the nature of the evidence must be. (Many employees think the company need the video, the confession, the DNA like on television this is the criminal test.)
In the case of the disability worker, the Applicant was summarily dismissed. A summary dismissal takes place when the misconduct is extremely serious, and the dismissal has the capability to be effective immediately without notice or payment in lieu of a notice period. In certain circumstances, Fair work Commission Victoria may look to the proportionality of the misconduct in relation to a summary dismissal. In the case of Fesshatsyen v Mambourin Enterprises Ltd  FWC 1244, the court was satisfied that in proportion to the misconduct, a summary dismissal was not harsh, unjust or unreasonable.
Furthermore, the two recent decisions in Victoria by the Fair work Commission suggest that the Commission is taking a tougher approach to serious misconduct and that this may in turn result in more dismissals from serious misconduct investigations, especially in industries where there is a high standard of duty of care towards clients, students or patients. Therefore, remorse and responsibility, two moral values play a significant role in the legal outcomes of serious misconduct dismissals in Victoria.
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 Edwards v Justice Giudice  FCA 1836
 Briginshaw v Briginshaw  HCA 34