Swept Out Too Soon: The Risks of Skipping Procedural Fairness in Dismissal Decisions

In a landmark decision handed down on 24 June 2025, the Fair Work Commission (FWC) ruled in favour of Mr Shaun Turner (Mr Turner), a street sweeper who was dismissed by Darebin City Council for comments made during an Acknowledgement to Country that was run during a routine toolbox meeting.

The case underscores the importance of balancing procedural fairness, substantive fairness, and the application of cultural practices when considering disciplinary actions.

Mr Turner had been employed full-time since 2019. On 3 June 2024, he was dismissed following remarks made during a routine toolbox meeting. The meeting began with an Acknowledgement of Country, a practice that recognises the traditional custodians of the land. Mr Turner responded with a comment that the Council deemed inappropriate and questioned the practice, suggesting that servicemen and women should be acknowledged instead.

The Council argued that these comments breached its workplace conduct policies and justified immediate termination.

However, the FWC found that the dismissal lacked a valid reason and was procedurally flawed. Deputy President Clancy noted that while the Council had policies in place, it failed to demonstrate that Mr Turner’s conduct warranted dismissal, despite a prior warning that was not clearly connected to the new allegations or relied upon in the termination process.

Deputy President Clancy emphasised that while employers have the right to enforce workplace standards, they must do so in a manner that respects the principles of natural justice. The Commission found

No Valid Reason for Dismissal

The FWC found that Mr Turner’s comments did not constitute serious misconduct under the Fair Work Act. While the Council viewed the remarks as inappropriate, Deputy President Clancy concluded that they were not offensive or disruptive enough to justify summary dismissal. The FWC noted that Mr Turner’s comments were brief, not threatening, and did not breach any specific policy in a way that warranted termination. Importantly, the Council failed to demonstrate that the remarks had a significant negative impact on the workplace or breached a clearly defined standard.

Lack of Training records

The Council argued that Mr Turner’s comments violated its workplace standards, which he had been training in. However, without documented evidence that Mr Turner had received training on these standards, especially regarding cultural sensitivity and respectful conduct, the FWC found it difficult to conclude that he knowingly breached the workplace standards. The Commission noted that Mr Turner’s comments, while potentially inappropriate, did not breach any clearly defined or communicated policy.

Procedural Unfairness

The FWC was critical of the Council’s handling of the disciplinary process. Although Mr Turner was invited to a meeting on 21 May 2024 to respond to the allegations, the FWC found that this opportunity was not genuine. The Council had already formed a view that dismissal was appropriate and did not engage in a fair or impartial investigation. There was no evidence that Mr Turner was given access to the full details of the allegations or that his responses were meaningfully considered. This failure to follow a fair process, especially in a case involving potential dismissal, was a key reason the FWC deemed the termination procedurally unfair.

Lack of Proportionality

Deputy President Clancy acknowledged that Mr Turner had received a final written warning from Darebin City Council on 31 October 2023. However, the FWC found that this warning was not clearly linked to the conduct that led to his dismissal in May 2024. It was not referenced in the termination letter, nor was it used as part of a structured, progressive disciplinary process. Given Mr Turner’s length of service and the absence of any further infractions between the warning and the dismissal, the FWC concluded that the decision to terminate his employment was disproportionate. A more appropriate response may have been a fresh warning or counselling. The harshness of the penalty, considering these factors, contributed to the finding that the dismissal was unjust and unreasonable.

The FWC reserved its decision on the appropriate remedy, leaving open the possibility of reinstatement or compensation.

This case offers several important takeaways for employers navigating sensitive workplace issues:

1.Ensure Procedural Fairness:

Before taking disciplinary action, employers must:

• Conduct a thorough and impartial investigation.
• Give the employee a chance to respond to allegations.
• Document all steps taken.

Failure to follow these steps can render a dismissal unfair, regardless of the nature of the alleged misconduct.

2. Apply Policies Consistently

Workplace policies must be clearly communicated and consistently enforced. If cultural protocols like Acknowledgement of Country are part of workplace practice, employees should be educated on their significance and expected conduct.

3. Consider Proportionality

Disciplinary responses should be proportionate to the conduct. Inappropriate comments may warrant counselling or a warning, not immediate dismissal, especially if the employee has no prior infractions.

4. Respect Cultural Sensitivities

While employees are entitled to personal views, employers should foster respectful dialogue around cultural practices. Training and awareness programs can help prevent misunderstandings and promote inclusivity.

5. Document Everything

Clear documentation of employment terms, policies, and disciplinary procedures is essential. In this case, the Commission referenced Mr Turner’s signed employment agreement and the Council’s enterprise agreements to assess the fairness of the dismissal.

6. Retain accurate training records

It is important that employers retain accurate training records and conduct regular training on such subjects as cultural awareness and the employer’s expectation of employees.

This case is a reminder that fairness, transparency, and cultural awareness are not just ethical imperatives, they’re legal ones. Employers must tread carefully when addressing sensitive issues and ensure that their actions align with both workplace policy and the principles of natural justice.

For more information or support navigating workplace issues, please contact our team today.