Fleet company not required to reverse course on dismissal of ship’s captain (despite procedural fairness failings) 

The Fair Work Commission’s (FWC) unfair dismissal decision in Paul James McAllister v Ahoy Club Fleet Management Pty Ltd [2024] FWC 2651 has provided useful guidance about a situation where the employer had a valid reason for dismissal but had erred in not giving the employee a chance to respond to allegations before making the termination decision.

Deputy President Cross found that, given the Applicant’s safety breaches and gross negligence, the employer’s failure to give him an opportunity to respond to allegations was not a sufficient reason to find that the dismissal was harsh, unjust or unreasonable.

Background

Mr McAllister worked for Ahoy Club Fleet Management Pty Ltd (Ahoy) as the Captain of the motor vessel “Rascal” (the Vessel).

Ahoy terminated Mr McAllister’s employment on 31 May 2024, saying that he had breached his contract and company policies. Specifically, Mr McAllister was responsible for the Vessel when it collided with a port channel marker, causing approximately $150,000 of damaged and almost severely injuring a deck hand.

As part of a collision incident investigation, Mr McAllister blamed the crash on distracting questions from guests, dark and windy conditions, a narrow channel, fatigue, and time pressures.

However, Mr Dean Alexandre, Ahoy’s Yacht Manager (who conducted the collision incident investigation), formed the view that Mr McAllister had committed several safety breaches, including failing to arrange a lookout, abandoning the bridge while the Vessel was underway, switching off radar equipment, failing to sound the alarm and muster the crew and guests, and leaving one guest completely unsupervised on the bridge. Mr McAllister was also seen on security footage at the helm of the Vessel scrolling on his phone and vaping.

Mr McAllister was informed of the outcome of the collision incident investigation and the termination of his employment on the same day. He was not provided with a separate opportunity to respond to any allegations regarding his conduct.

Decision on Reason for Dismissal

DP Cross accepted that Mr McAllister’s substantiated conduct provided a valid reason for dismissal. The substantiated conduct, including safety breaches, constituted serious misconduct as defined in clause 1.07 of the Fair Work Regulation 2009.

DP Cross said that the main defect causing the collision was there being no lookout posted in the bridge at the relevant time. Mr McAllister’s fatigue, as a defence to this point, was seriously doubted. DP Cross also said that, even if this were true, “the Applicant was responsible for managing the fatigue of himself and the crew” including with watch schedules and staffing levels.

Decision on Procedural Fairness

One of the matters to be considered in any unfair dismissal matter is whether the employee had an opportunity to respond to the reasons for dismissal. In this matter, Mr McAllister had an opportunity to participate in the collision incident investigation but once the results of that investigation were known he was not provided a separate opportunity to respond to the allegations about his alleged conduct.

DP Cross referenced the Full Bench of the FWC decision in Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 in saying that, for misconduct generally, two questions should be considered when procedural faults are established. They are:

• Did the seriousness of the misconduct outweigh any procedural faults? and
• Would the procedural faults have affected or altered the ultimate outcome of the dismissal?

DP Cross commented that the seriousness of the misconduct here heavily outweighed any procedural faults, and even if Mr McAllister had been given an opportunity to respond it would not have affected the ultimate decision to dismiss him from employment.

Key Take-Aways

This case highlights some important considerations for dismissal decisions, namely that:

1. To ensure a defensible and procedurally fair process, employers should make sure that employees have an opportunity to respond to reasons for dismissal (even if the employee has already participated in a workplace investigation or safety investigation). This usually involves:
   • notifying the employee that the employer is contemplating terminating their employment (and the reasons for that potential decision); and
   • providing the employee an opportunity to ‘show cause’ why that decision should not be made.
2. However, the fact that an employer has not provided a worker procedural fairness in all aspects will not necessarily mean that the dismissal is ‘harsh, unjust or unreasonable’; and
3. A dismissal will still be upheld if the misconduct is sufficiently serious and the procedural faults would not have altered the ultimate outcome of the dismissal.

If any further information in relation to any aspect of this article or for specialised employment law advice, contact Workdynamic at https://workdynamic.com.au/contact

Disclaimer: The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information in this article does not constitute legal advice and should not be relied upon as such. You should obtain specific advice relevant to your circumstances.

Authors: Anna Kovalsky, Executive Counsel and Zeb Holmes, Senior Associate.