Case: Barber v Veolia Recycling and Recovery Pty Ltd [2025] FWCFB 141
In Barber v Veolia Recycling and Recovery Pty Ltd [2025] FWCFB 141, the employee was dismissed after a series of workplace incidents, including a positive blood alcohol reading. At first instance, the Commission found there was a valid reason for dismissal and dismissed the employee’s unfair dismissal application.
On appeal, however, the Full Bench found that the employee had been denied procedural fairness. The problem was not simply whether the employer had concerns about the employee’s conduct. The issue was that the Commission had relied on adverse findings and matters that had not been properly put to the employee, meaning he did not have a fair opportunity to respond.
The Full Bench quashed the original decision and ordered the employee’s reinstatement.
What this means for employers: This decision is a timely reminder that having a valid concern about an employee’s conduct is not enough. Before dismissing an employee, employers should ensure that:
- the allegations are clearly identified;
- the employee is told the substance of the concerns;
- the employee is given a genuine opportunity to respond;
- the decision is not pre-determined; and
- the final decision only relies on matters that have been put to the employee.
Key takeaway:
Procedural fairness is not a box-ticking exercise. If an employer intends to rely on particular conduct, evidence or findings to justify dismissal, those matters should be clearly put to the employee before the decision is made.
For employers, the safest approach is simple: tell the employee the case against them, give them a real chance to answer it, and only then decide the outcome.
The official FWC decision is here.
