In the recent unfair dismissal decision of Carmody v Bureau Veritas Minerals Pty Ltd [2025] FWC 259, the FWC has clarified what will (or will not) constitute ‘serious misconduct’ warranting summary dismissal in the context of managing employee performance.
The applicant in this matter was a Quality Control Officer who had been employed for eighteen months by Bureau Veritas Minerals Pty Ltd (the Employer) before he was summarily dismissed from his employment.
As a Quality Control Officer, the employee was required to examine raw data that had been input by laboratory technicians and to identify and, where possible, resolve errors and anomalies so that the reports sent to clients were accurate.
In January 2024, a client raised concern over a test result in a report (the January 2024 incident). The Employer investigated the matter and concluded that the employee failed to identify the error of a laboratory technician, “cut and pasted” data and estimated the results in an attempt to resolve the error. The client was not satisfied with the employee’s conduct and was “not comfortable with the integrity of data associated with this dispatch”. The employee’s manager counselled the employee for the incident.
In August 2024, the same client raised a concern about another test result in a report submitted by the employee (the August 2024 incident). Upon investigation, the employee’s temporary supervisor found that the error was a similar failure to the January 2024 incident. The temporary supervisor decided that in light of the January and August 2024 incidents, the employee’s conduct required disciplinary action.
In September 2024, the employee was issued with a show cause letter that alleged that he had engaged in serious misconduct involving the “falsification and manipulation” of data. He was ultimately summarily dismissed for this serious misconduct.
In his unfair dismissal application, the employee argued that his conduct was not “misconduct” because the report was his reasonable professional assumption and estimation, was consistent with his training and practices and any error had been caused by the inaccuracy of the laboratory technician.
The employee also argued that, even if he had made an error in his work, his conduct did not amount to serious or wilful misconduct. Failing that, the employee argued that the dismissal was harsh, unjust and unreasonable because he was otherwise a competent employee, and the dismissal was disproportionate to the conduct.
The Employer argued that the dismissal was not harsh, unjust or unreasonable given there was a reasonable expectation that the Quality Control Officer would exercise care and diligence with each report he completed, and he had repeatedly failed to do this, falsifying and manipulating data and then seeking to blame others for the inaccurate reports. As a result of this, the Employer submitted that it had reasonably lost trust and confidence in the employee.
In considering the evidence before it, the FWC found that it was clear from the August 2024 incident that the employee transposed data, which was plainly anomalous and inaccurate and, rather than take reasonable steps to resolve the error, the employee estimated properties of the report knowing that the client was not comfortable with this procedure.
The FWC found that the employee’s failure to meet the reasonably required performance standard for his position amounted to misconduct and therefore provided a valid reason for dismissal. The FWC reasoned that the employee’s errors in the August 2024 incident were avoidable had due care and attention been exercised. It also noted that the employee had received previous counselling for the misconduct.
However, the FWC did not find that the employee’s conduct constituted serious and wilful misconduct. While the FWC considered that “making up numbers” was not an acceptable process and the transposition of data without due care may be serious, the conduct was not properly characterised as data manipulation, as there was no ill intent by the employee. Instead, the FWC found that the conduct was a “serious lapse of professional judgement occasioned by a failure to take due care”.
The FWC noted the Employer believed summary dismissal to be proportionate because of the failures struck the primary responsibilities of the employee’s role. However, the FWC favoured the employee’s submissions that the employee had not been formally warned about his misconduct prior to dismissal and that some weight should begiven to the irregularity of the incidents given that the standard of performance is for “competence and not perfection”.
Overall, the FWC found that although there was a valid reason to dismiss the employee, the summary dismissal was disproportionate because the misconduct did not amount to serious misconduct, and therefore the dismissal was harsh only on the basis that the employee was not afforded pay in lieu of notice.
Finding that reinstatement was inappropriate given the loss of trust and confidence, the FWC considered compensation to be an appropriate remedy and awarded the employee one month’s pay to compensate the notice that the employee would have otherwise received.
This decision highlights the high standards that must be met by employers when considering summary dismissal – particularly in the context of an employee’s poor performance.
While these matters must be dealt with on a case-by-case basis, employers should not assume that poor performance (or lapses in professional judgment) will always be sufficient to constitute serious misconduct. More must be shown to meet this standard, such as an intention to deceive or mislead.
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