Disciplinary Actions: Where Employers Go Wrong

Many employers focus on whether they have a valid reason to dismiss an employee.

However, the recent Fair Work Commission decision in Tony Ritter v Curtis Island Services Trading AS SeaLink Whitsundays highlights that having a valid reason is only part of the equation. Even if there is a valid reason for dismissal, an unfair or incomplete disciplinary process can still render the dismissal unfair.

The Facts

The Applicant was employed as a casual Master. The complaint by another employee in June 2025 alleged a pattern of unsafe and inappropriate conduct, including:

1. sleeping on duty
2. using a phone while responsible for guest safety
3. vaping onboard
4. allowing unqualified crew to operate the vessel and 
5. disposing of food waste into the sea. 

This complaint prompted the employer to commence an internal investigation. 

The Applicant was presented a letter of allegations, to which he responded a few days later. 

Following this, the Applicant was informed via Microsoft Teams that his employment was terminated for misconduct. A formal termination letter followed, citing a pattern of behaviour that breached safety requirements, workplace policies and applicable laws, and resulted in loss of trust and confidence. 

The Applicant lodged an unfair dismissal claim. He argued that the conduct relied upon was relatively minor and that the disciplinary process was flawed because he had not been given a proper opportunity to respond to the allegations or to show cause before the decision to dismiss was made.

The employer maintained that there was a valid reason for dismissal and that the process followed was fair.

What the Commission Found

The Commission accepted that there was a valid reason for dismissal, based on a pattern of inappropriate conduct that included sleeping on duty, vaping, improperly delegating control of a vessel, and disregarding safety policies.

However, the Commission found that the dismissal process was procedurally unfair because the Applicant was not given a full opportunity to respond to the substantiated allegations or to show cause why dismissal should not be the outcome.

The dismissal was therefore found to be unfair, but not harsh or unjust.  

The Commission considered reinstatement inappropriate due to the loss of trust and confidence. However, compensation was ordered, reduced by 30% to reflect the Applicant’s misconduct, resulting in an amount of $5,204.39 plus superannuation.

Where the employer went wrong

The Commission identified several procedural issues that ultimately undermined the fairness of the dismissal process:

1. The Applicant was not clearly told that an informal “chat” was part of a disciplinary process.
2. The employee was not informed of the seriousness of the discussion or told that the process could result in dismissal. This meant he did not have clear notice of the potential consequences before responding.
3. The employer gave the appearance of having reached a view before the Applicant had responded, by making the comment “There’s allegations, they are pretty founded”.
4. The employer made this comment before the Applicant had a chance to respond to the allegations letter and before the allegations had been properly substantiated. This created an impression that the outcome may have been pre-determined.
5. The Applicant was not given a separate opportunity to respond to the proposed outcome of dismissal, in light of the investigation findings.
6. The Applicant said he believed he had responded well and expected only a written warning. The Commission’s observations suggest that the Applicant did not appreciate that his employment was at risk, or that he had a final opportunity to address why dismissal should not occur.

Key takeaway for employers

This decision is a useful reminder that a disciplinary process should involve two distinct stages: 

1. An opportunity for the employee to first respond to the allegations and 
2. If the allegations are substantiated, a separate opportunity for the employee to respond to the proposed disciplinary outcome. 

Combining those steps, or suggesting the allegations are already proven before the employee has responded, can undermine procedural fairness even where there is a valid reason for dismissal. 

The cost of a flawed process can extend well beyond compensation, with legal fees, management time and workplace disruption often avoidable if dismissal is managed properly from the outset.

What the employer should have done

To reduce the risk of a procedurally unfair dismissal, the employer should have taken the following steps:

1. Notified the employee that concerns had been raised about their conduct and that a meeting would be held to discuss the investigation or disciplinary process.
2. Afforded the employee the opportunity to have a support person present at the meeting, noting that the employee may elect not have a support person present.
3. Provided the employee with a written letter of allegations that clearly identified the conduct in issue and the evidence being relied upon.
4. Given the employee an opportunity to consider the allegation prior to requesting a response.
5. Given the employee a genuine opportunity to respond. 
6. Considered the employee’s response alongside any other relevant evidence, including witness information, workplace policies and safety obligations, before deciding whether the allegations are substantiated.
7. Issued a findings letter to the employee, that identifies which allegations are substantiated on the balance of probabilities.
8. If any allegations were substantiated, issued a separate show cause letter which explained that dismissal or other disciplinary action is being considered.
9. Allowed the employee a reasonable opportunity to respond to the proposed outcome before making a final decision.
10. Provided a final outcome letter that explains the decision, summarised the process followed, identified the substantiated allegations and confirmed the disciplinary outcome.
11. This case serves as a reminder that each dismissal needs to be carefully considered, ensuring procedural fairness, to reduce the prospect of an adverse unfair dismissal decision.

Responsible for Ending Employment?

A valid reason for dismissal is not enough. As this case demonstrates, employers can still face an unfair dismissal finding where the process falls short.

If you are responsible for disciplinary decisions, employee exits, performance management or workplace investigations, the Ending Employment training course will provide practical guidance on managing these processes lawfully and with confidence. Learn how to reduce legal risk, improve procedural fairness and make better dismissal decisions. Upskill now to help guide your strategy and decisions. 

Interested to read the full case of Tony Ritter v Curtis Island Services Trading AS SeaLink Whitsundays? You can find it here.