The Case

Robertson v Imperial Mushrooms Pty Ltd (2021)

Ms Robertson was employed to pick mushrooms for Imperial Mushrooms Pty Ltd (Imperial Mushrooms). At the end of every shift, Ms Robertson was required to return the mushroom-picking tools to Imperial Mushrooms. An inventory was then conducted to determine if any tools were missing.

In August 2020, Ms Robertson failed to return her knife to Imperial Mushrooms at the end of her shift. Imperial Mushrooms contacted Ms Robertson, who indicated she had returned it but may have accidentally put it back in the wrong spot. Imperial Mushrooms searched for the knife but could not locate it. It again called Ms Robertson on her rostered day off to discuss the whereabouts of the knife. Ms Robertson failed to return the calls.

Given the safety risks, Imperial Mushrooms then rechecked all the product prepared by Ms Robertson to see if the knife had accidentally been placed into the product. After checking the product, Imperial Mushrooms was still unable to locate the knife. When Ms Robertson returned to work, she located the knife, which she had placed on the wrong hook.

Imperial Mushrooms called a meeting with Ms Robertson and stood her down. At a subsequent meeting, Imperial Mushrooms handed Ms Robertson an employment termination letter, stating she was being summarily dismissed for having caused an occupational health and safety risk and damaging the reputation, viability and profitability of Imperial Mushrooms’ business. Ms Robertson filed an unfair dismissal claim in the Fair Work Commission (FWC), claiming there was no valid reason for the termination of her employment.

The Verdict

The FWC held that the termination of Ms Robertson’s employment was harsh, unjust and unreasonable given:

• there was no valid reason for the employment termination;
• Ms Robertson’s actions amounted to a mistake that might give rise to disciplinary conduct but not summary dismissal;
• Ms Robertson’s actions were not intentional and negligent, which is what was required to constitute serious misconduct;
• Imperial Mushrooms had checked the product prepared by Ms Robertson, and had satisfied itself that there was no risk of serious or imminent harm to other persons or the business; and
• Imperial Mushrooms did not provide Ms Robertson with an opportunity to respond to the allegations given the dismissal was decided and termination letter handed to her at the second meeting.

The FWC found that Ms Robertson would have remained employed but for the unfair dismissal and awarded her the maximum 6 months’ compensation.

The Lessons

It is important to consider the circumstances before deciding to terminate an employee’s employment. Sometimes other disciplinary action, such as a warning, may be more appropriate.

If a valid reason possibly exists to justify a dismissal, then employers must provide an employee with an opportunity to respond before making a final decision. An employee may have a valid and reasonable explanation for their actions, which may dissuade an employer from a decision to dismiss.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.