Even if an employer has valid reasons to terminate an employee, the employer MUST follow appropriate procedures
A recent case from the Australian Fair Work Commission illustrates the importance of complying with appropriate procedures when terminating an employee, despite the conduct of the employee otherwise entitling the employer to dismiss them.
The case of Bin Boy Environmental Pty Limited v Thomas resulted from the dismissal of Mr Thomas, who was employed by Bin Boy as a driver, for the following reasons:
- He distributed pornographic material into other driver’s trays in the staff area, for reasons best known to himself.
- While on a good behaviour licence, he committed two further speeding offences while driving company vehicles which resulted in him losing his driving licence.
- He complained in a WhatsApp discussion group regarding safety issues which the employer believed was inappropriate.
- He was found to have sent mobile phone texts while driving his vehicle.
On 13 November 2025, Bin Boy terminated him for serious misconduct, providing two weeks’ notice. He received a letter but the letter did not set out the specific allegations against him, instead referring to “a review of recent incidents and your conduct”.
The Fair Work Commission found that Bin Boy had failed to provide procedural fairness to Mr Thomas in that he was not given the opportunity to respond to the allegations or explain his behaviour. Crucially, the Commission was concerned with the claim by Bin Boy that it had provided written warning to Mr Thomas previously. The Commission indicated that it were “troubled by the possibility that the employer fabricated the warnings”. As a result, despite finding that Mr Thomas’ behaviour warranted dismissal (and that reinstatement of his employment was not appropriate), the Commissioner nevertheless ordered that he be paid an amount of $7,000, which was about two weeks’ pay, owing to the employer’s failure to follow appropriate procedure.
The case illustrates both the importance of properly documenting all decisions to terminate an employee and also the need for any cases involving unfair dismissal to be properly prepared and conducted with the appropriate evidence. In this case, neither party was legally represented although the employer did utilise its external payroll and HR support person to assist with the hearing. A word of warning to employers: the Commissioner stated that the employer’s “relaxed approach to procedural fairness – because he believed he was doing the right thing – is unacceptable”.
Our firm has decades of experience in advising on employment matters, both for employees and employers and we are happy to assist in such matters.
