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Unfair Dismissal: Evidence is CRUCIAL

Fair Work reminds us: keeping evidence is key in unfair dismissal cases.

Case Overview

Unfair Dismissal Claim


Piacentini & Sons Pty Ltd, a mining and earthmoving service provider, alleged that Gardner, a Production Supervisor was found asleep at work on August 7 and 8, 2023, and was uncontactable via two-way radio.

Gardner was dismissed after the business carried out an investigation.

Gardner rejected the accusations and argued that his firing was unfair by lodging an unfair dismissal claim with the Fair Work Commission.

Evidences and Witness Accounts

  • Gardner and multiple Piacentini employees presented conflicting testimonies.

  • Gardner stated he was not asleep but rather engaged in work-related tasks.

  • Piacentini's witnesses, including Gardner's supervisor Daniel Brazier, alleged Gardner was asleep in his vehicle and crib room on respective dates.

Investigation and Termination Process

Piacentini conducted an investigation, leading to Gardner's temporary suspension.

  • Gardner requested dashcam footage to support his innocence.

  • A show-cause letter was issued, demanding Gardner's explanation.

  • Gardner denied the allegations.

  • However, the retrieved dashcam footage (when retrieved) only dated back to August 14, 2023.

  • Gardner received termination notification via email on September 14, 2023, citing policy breaches and trust issues.

Employer's Evidence Mishandling

  • Gardner criticised the investigation's deficiencies, particularly the delay in accessing dashcam footage.

  • The FWC acknowledged flaws in the employer's investigation, including substantiating allegations before Gardner's response opportunity.

  • Failure to interview other staff and retrieve crucial evidence in time impacted the investigation's integrity.

FWC Ruling

The FWC deemed the dismissal harsh, unjust, and unreasonable, necessitating further hearings for remedies.

You can find more detail about this case here.

Action Steps

  • Implement robust systems for recording incidents, including gathering evidence such as CCTV footage or witness statements promptly.

  • Follow established protocols for investigations set in your policies, including interviewing all relevant parties and ensuring transparency throughout the process.

  • Establish clear channels for employees to raise grievances and ensure timely responses to such issues to prevent escalation.

  • Stay updated with relevant employment laws and regulations, reach out early in the process to ensure compliance and minimise legal risks

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