Default “one size fits all” approach to disciplinary action doesn’t work
After 16 years of impeccable service, a captain’s work life came to a dramatic end after making a mistake due to poor judgement caused by anxiety. His mistake resulted in a serious breach of the company’s policy which ultimately led to disciplinary action and his dismissal. The commission ruled that the captain’s dismissal was harsh and didn’t take into account the context of the situation.
After 16 years of impeccable service, a captain’s work life came to a dramatic end after making a mistake due to poor judgement caused by anxiety over an issue that his employer had not properly resolved two years earlier. His mistake resulted in a serious breach of the company’s policy, which ultimately lead to disciplinary action and his dismissal.
The captain was given a show cause letter and asked to explain why his employment should not be terminated. At first, he turned to his union, the Australian Maritime Officers Union (AMOU) for advise because of significant mitigating factors that surrounded the relevant conduct.
His union arranged to be present at the meeting to explain the mitigating factors surrounding his lapse in judgement. In particular, the fact that the company had not resolved an issue two years earlier which led to the current situation. Not happy with the reasonable explanation put forward by his union, the company made the decision to dismiss him.
In an effort to continue the fight to clear his name and fight for his rights, his union turned to their lawyers, Hall Payne’s Union Law.
Hall Payne’s Joseph Kennedy took on the case, “Our client had endured a very difficult period and had an impeccable employment record leading up to the incident.” said Joseph.
Joseph along with the captain’s union developed a legal strategy to show that the captain’s dismissal was harsh, unjust and unreasonable.
Taking into account the impeccable 16 years service of the captain, the commission was surprised that the company went straight to dismissal and did not explore other avenues available to them, such as an education process and or rehabilitation.
The commission ruled that the captain’s dismissal was harsh and that the company had failed to consider other options that were available to them. “It appears that the consideration of penalty was binary – dismissal or not dismissal,” said the commissioner.
“It is not apparent that any other disciplinary outcome was considered for [the captain]…I am not convinced that [the company] considered if rehabilitation or any other penalty was a possibility. In this respect the consideration was, in the circumstances, too narrow.”
The Executive Officer of the AMOU, Mark Davis, said the following about the case: “When Joseph told me we had won the case I was bowled over – it is a great result. The Union was of the view that dismissal was too heavy-handed given the circumstances and the top dog on board ship was clearly being made an example to all crew members.”
Hall Payne’s Joseph Kennedy stated, “The case is important because it highlights why an employer is wrong to apply a default “one size fits all” approach to disciplinary action. Each instance of misconduct must be considered on its merits, and the surrounding circumstances taken into account.”
The commission also decided that reinstatement is inappropriate and that compensation needs to considered. The commissioner is to still consider what amount of compensation will be awarded in the matter.
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