In a recent decision, the Fair Work Commission (“FWC”) confirmed that employers can expect more of senior employees and that flaws in a dismissal process do not necessarily make a dismissal for serious misconduct unfair. 

Background facts 

The case involved an employee who was employed to be the Captain of a chartered vessel, which had seven crew and 12 guests. The vessel was chartered for two hours.  

There were a range of safety policies and regulations with which the Captain was required to comply.  

The Captain was found to have failed to appoint a look out and turned off the radar as the vessel entered Hayman Island Waters. 

The vessel collided into a marker, causing $150,000 of damage to the vessel.  

Following the collision the Captain was found to have: 

• not sounded the alarm; 
• failed to muster and check on all crew and guests; 
• left the bridge without appointing a helmsman; and 
• left a guest unsupervised on the bridge.  

Video footage also found the Captain had been scrolling his phone and vaping while he was supposed to be in charge of navigating the vessel.  

The employer conducted an investigation which, in addition to finding the above, also found the Captain had: 

• breached safety obligations; 
• failed to discharge the responsibilities of a Captain under the safety management system; and 
• engaged in gross negligence. 

The findings resulted in the Captain’s employment being terminated for serious misconduct.  

The employee challenged the dismissal claiming that he was unfairly dismissed because: 

• it was his first major incident; 
• the collision occurred because he was fatigued;  
• the various breaches were due to him trying to comply with the employer’s request to keep guests happy; and 
• while he had been given the opportunity to provide a statement at the commencement of the investigation he was not given the opportunity to respond to the specific allegations or the decision to terminate his employment.  

The FWC noted the seniority of the Captain’s position stating that “it is uncontroversial that an employer can expect more from employees in senior positions” and that employers are “entitled to expect loyalty, trustworthiness and honesty” from senior employees. 

The FWC acknowledged that if the dismissal process had been conducted properly, the employer should have provided the employee with an opportunity to respond to the reasons for termination of employment and final decision to terminate his employment.  

However, the FWC determined whether the procedural flaw should make the dismissal unfair by asking two questions: 

1. Did the seriousness of the misconduct outweigh any procedural faults?
2. Would the procedural faults have affected or altered the ultimate outcome of the dismissal? 

The FWC found that the employee’s conduct was “wilful, deliberate and inconsistent with the continuation of his employment” and that the “…serious safety breaches, constituted serious misconduct…” 

“In this matter, the seriousness of the misconduct heavily outweighted any procedural faults, and the procedural faults would not have affected or altered the ultimate outcome of the dismissal.” 

Key takeaways 

While employers should always endeavour to follow proper processes and procedures, the FWC does not always expect perfection. This case is a good example of where procedural errors of the employer had to be weighed against the seriousness of the misconduct of the employee.  

For employers who find themselves in the unfortunate position of dealing with a situation involving the serious misconduct of an employee there is always a sense of urgency and the need to make decisions quickly. Failure to act quickly can result in an employer being seen to confirm an employee’s ongoing employment. In such haste, it is understandable that some employers will make procedural errors and this case provides guidance as to when the FWC will grant employers leniency.