The recent case of Steven Biffin v XL Express Pty Ltd T/A XL Express  FWC 3702 highlighted a number of issues of substance and procedure in validly dismissing an employee. This case shows how unsubstantiated allegations of bullying against an employee can result in the dismissal being deemed unfair.
Steven Biffin was a long-standing employee of XL Express, having worked a total of 24 years with the company, the final eight years in a managerial role as Depot Manager for the distribution business. The apparent reason for the dismissal is the error of Mr Biffin in allowing copies of the new J.K. Rowling novel ‘Fantastic Beasts and Where to Find Them’ to be distributed to a retailer a day earlier than expected.
Mr Biffin had been called to a meeting with upper management where he had been immediately informed of his dismissal. The employer cited the “serious misconduct” surrounding the early distribution of the book, as well as allegations that the employee had been bullying subordinates and colleagues. Mr Biffin denied any such bullying, and the employer had close to no evidence of that allegation.
During the course of that final meeting, the Human Resources Manager had continuously been attempting to convince Mr Biffin to sign a resignation letter, saying that this would look better on the CV for future employment prospects, and offered an enticement that the company would agree to pay him additional wages. The employee refused to resign, collected his personal belongings, and left peacefully.
The FWC, through Deputy President Asbury, determined that there was no valid basis for the dismissal, and that the actual manner of the dismissal was severely lacking in fairness. As the relationship had been strained beyond repair, reinstatement was not ordered.
Lack of Valid Basis
The FWC noted that the allegations of bullying were unsubstantiated and could not be used as a basis for the dismissal, thereby leaving the erroneous early release of the famed novel the only ground for the dismissal. In that regard, the FWC noted that the embargoed delivery of the novels was indeed misconduct, but it found that Mr Biffin was not solely at fault, and that could not be a valid ground to dismiss him.
Manner of Dismissal
The FWC also noted irregularities in the manner of the dismissal. It was only at that final meeting that Mr Biffin was informed of the allegations of bullying, thereby giving him very little opportunity to refute the allegations and defend himself. As Deputy President Asbury put it, the fact of the employee’s dismissal was presented to him as “fait accompli” and were a total denial of procedural fairness”.
The employee was awarded $48,400 in lost wages and $6,560 in superannuation contributions
Lessons From the Case
The FWC took steps to explain that not every misconduct is a ground for dismissal.
Indeed here the employee was partly responsible for the release of the books, but it was not found to be so serious of an error to warrant dismissal. Trivial misdemeanors will not constitute a valid reason for dismissal, and in this case, the errors in the release of the embargoed books was considered “disproportionate to the misconduct”.
It should also be stressed that equally as important as having valid grounds for a dismissal is the manner by which the dismissal is decided and communicated to the employee. The FWC has on many occasions highlighted the requirements that basic justice and fairness demands that employees be given the opportunity to refute the presented reasons for dismissal.