Sacked over an early book delivery and a bullying claim nobody proved

What happened

Steven Biffin managed the Brisbane depot of XL Express, a national road freight business. He had worked for the company as a contractor and employee for 24 years, and as Depot Manager from 6 May 2008.

Part of XL Express's work was delivering embargoed books, which cannot reach shops before a worldwide release time. In November 2016 it handled J.K. Rowling's Fantastic Beasts and Where to Find Them, due for delivery to stores on Thursday 17 November 2016. On 16 November, staff at the Brisbane depot moved the stock out of its holding area, loaded it and delivered it to a retailer a day early.

Mr Biffin had been on approved leave the day before, when the stock was palletised and labelled. About ten days before the breach he had raised concerns in writing that the depot was short staffed. The company agreed it had lost neither the contract nor any money in penalties.

The dismissal meeting

On 23 November 2016 Mr Biffin was called to the boardroom. He said that as soon as he sat down, the HR Manager told him he was dismissed immediately for serious misconduct: the early delivery, and an allegation that he was a bully. It was, he said, the first time he had heard of any bullying allegation.

The allegation came from a state workplace safety inspector. According to the HR Manager, the inspector told her in a meeting that four drivers said Mr Biffin bullied them. The company had no report and no names, and it did not carry out its own investigation. It also said he had wrongly told the inspector he had not been trained on bullying.

In the meeting he was urged to resign because it would look better on his resume, and was told the owner would pay six weeks' extra wages. He refused. By his account the whole process took about 15 minutes.

The legal test

Under s 394 of the Fair Work Act 2009 (Cth), an employee can apply to the Fair Work Commission if they were unfairly dismissed, meaning the dismissal was harsh, unjust or unreasonable. The Commission must weigh the matters in s 387. The two that mattered most here were:

(a) under s 387(a), whether there was a valid reason for the dismissal, meaning one that is "sound, defensible or well founded"; and (b) under s 387(b) and (c), whether the employee was told the reason and given a real opportunity to respond before the decision.

Where the employer relies on misconduct, the Commission must be satisfied that the conduct actually happened, and that it was serious enough to justify dismissal. A minor failing does not become a valid reason just because it is proved.

What the Commission decided

Deputy President Asbury found the bullying allegation was not a valid reason. The company relied on what the inspector had said to its HR Manager, which was hearsay, and it did not call the inspector or obtain any report. Without knowing who was allegedly bullied, when or how, it could not be concluded that Mr Biffin was a bully. On the training issue, she found Mr Biffin had simply told the truth.

The early delivery was different. The Deputy President accepted it was a serious matter and involved misconduct by Mr Biffin. As the responsible manager he should have checked the stock on the day, and a few minutes' visual inspection would likely have averted the breach. But the blame could not be laid entirely at his feet: two managers had been moved to other depots, the paperwork was kept in another manager's office, and the company's procedures for isolating and marking embargoed freight were not clear. The breach warranted a warning, not dismissal.

On process, Mr Biffin was presented with his dismissal as a fait accompli, a decision already made. She found the handling of the bullying allegation was a total denial of procedural fairness, and that more time was spent trying to persuade him to resign than hearing his side. The dismissal was harsh, unjust and unreasonable.

How much was awarded

Mr Biffin did not seek reinstatement. The Deputy President found he would have stayed at least 12 months, worth $115,000 in wages. She deducted 20% for contingencies, then the $27,423.08 the company paid him when he left, then 25% because his own misconduct over the embargo contributed to the dismissal. The result was $48,432.69 in wages, under the $57,500 compensation cap that applied to him.

The order issued on 31 July 2017 was for $48,432.69 plus $4,601.23 in superannuation. XL Express sought to appeal, arguing the award should be reduced by the long service leave Mr Biffin became entitled to once the dismissal was found unfair. A Full Bench refused permission to appeal on 22 November 2017, holding that leave earned by past service is not deducted from compensation for future lost income.

What this means for you

If you are accused of something serious at work, you are entitled to know the details and to answer them before a decision is made. An allegation passed on second-hand, with no names or dates, is a weak basis for dismissal, and an employer that skips its own investigation takes a risk.

Mr Biffin's own part in the embargo breach still cost him a quarter of his compensation. If you have been dismissed and think it was unfair, get advice quickly: an unfair dismissal application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect.