Why Procedural Fairness Can Make or Break a Dismissal

A recent Fair Work Commission (FWC) decision is a timely reminder that even where an employer has valid reasons for dismissal, a failure to afford procedural fairness can render a dismissal unfair and costly.

Taking the time prior to making a decision, stepping through a procedurally fair process and giving the employee the right to their reply to allegations that are consistent and appropriate to the situation, will set up an employer to defend their decision with confidence.

In Thomas v Bin Boy Environmental Pty Ltd [2026] FWC 917, the Fair Work Commission (FWC) considered an application for unfair dismissal under section 394 of the Fair Work Act 2009 (Cth). The applicant, Mr Daniel Thomas, was employed as a driver by Bin Boy Environmental Pty Ltd, a Victorian based waste management business. Mr Thomas was summarily dismissed in November 2025 on the grounds of alleged serious misconduct.

The employer relied on multiple allegations, including:

• placing pornographic material in a staff area
• speeding in company vehicles while subject to demerit point restrictions
• texting while driving company vehicles
• unsafe placement of hard waste
• dismissive comments in a workplace safety WhatsApp group
• communications with an external payroll/HR provider regarding pay concerns

Commissioner Tran accepted that some of the alleged conduct did occur and that three of the allegations constituted valid reasons for dismissal, namely:

• distributing pornographic material in the workplace
• speeding in company vehicles
• texting while driving company vehicles.

However, several aspects of the employer’s case were not accepted, including the allegation relating to communications with the external payroll/HR provider. The Commission did not regard those communications as misconduct, noting that they arose in the context of the employee raising concerns about pay. There was no evidence that the communications were abusive, threatening, or otherwise unreasonable. As such, they did not constitute a valid reason for dismissal and should not have been relied upon as part of the misconduct case.

More broadly, the Commission found the dismissal to be harsh, unjust and unreasonable due to significant procedural deficiencies, including that:

• Mr Thomas was not clearly notified of the reasons his employment was at risk
• he was not given an opportunity to respond to the allegations before the dismissal decision was made
• the termination letter referred only generally to a “review of recent incidents and conduct”
• the employer relied on alleged prior warnings that the Commission was not satisfied had ever been issued or received
• documentary evidence was inconsistent, including reliance on policies that did not exist at the time they were said to have been acknowledged.

The Commissioner reiterated that procedural fairness is “the very touchstone” of the Commission’s work, and was critical of the employer’s approach both to the dismissal process and to the conduct of the proceedings.

Employers should take particular note of the following practical lessons:

Distinguish complaints from misconduct

Employees raising pay or entitlement concerns, even robustly, are generally exercising a legitimate workplace right. Treating such communications as misconduct carries both unfair dismissal and broader employment law risks associated with General Protections.

Avoid overloading dismissal cases with weak allegations

Including marginal or unsubstantiated allegations can detract from otherwise valid reasons and damage credibility before the FWC.

Put allegations clearly and expressly

Employees must be told, in clear terms, what the allegations are and that dismissal is a possible outcome.

Provide a genuine opportunity to respond

This requires more than notice, it requires meaningful consideration of the employee’s response before a decision is made.

Do not rely on undocumented or inconsistent warnings

If prior warnings are relied upon, employers must be able to demonstrate that they were actually issued, received and understood.

Process discipline matters, regardless of business size

While the FWC recognises the realities of small business operations, basic procedural fairness obligations still apply.

Thomas v Bin Boy Environmental Pty Ltd is a cautionary tale of how both procedural failures and overreach in allegations can combine to undermine an otherwise arguable dismissal. Employers should ensure that misconduct processes are focused, proportionate and fair, and that legitimate employee complaints, particularly about pay, are handled through appropriate grievance channels rather than disciplinary ones.

If you have concerns regarding procedural fairness, dismissals or for any support with your people matters, please contact us below and one of Workplace Strategists will be in touch within 24 hours.