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The decision in Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, handed down by the Fair Work Commission Full Bench (FWCFB) demonstrates that an Employee may repudiate the employment relationship in their behaviour and actions.
Background and Procedural History
Parties:
Applicant – Mr. Gelagotis (the employee)
Respondent – Esso Australia Pty Ltd (the employer)
Dispute:
Mr. Gelagotis was employed by Esso Australia and was dismissed from his employment.
He sought remedy in the Fair Work Commission (FWC), alleging that his dismissal was unfair.
At first instance (before a single member of the FWC), Mr. Gelagotis’s claim was dismissed. The Commission held that Esso had a valid reason for the dismissal and had followed a fair process.
Appeal to the Full Bench
Grounds of appeal: Mr. Gelagotis appealed the first-instance decision on a number of grounds, primarily asserting errors of fact and law regarding whether there was a valid reason for dismissal and whether the process followed was procedurally fair.
The matter proceeded to the Full Bench of the Fair Work Commission (FWCFB).
The facts revolve around Mr. Gelagotis’s conduct in the workplace and Esso’s response:
Alleged Conduct:
Esso claimed that Mr. Gelagotis had engaged in misconduct or inappropriate behavior in breach of company policies (including workplace standards related to safety or disciplinary rules).
The employer argued that the seriousness of these breaches provided a valid reason for dismissal.
Investigation and Disciplinary Action
Esso investigated the alleged misconduct and concluded that Mr. Gelagotis had committed serious breaches. The employer then terminated his employment, asserting it was justified under the Fair Work Act 2009 (Cth).
Central Questions Before the FWCFB
Validity of the reason for dismissal: Was the alleged misconduct sufficiently serious and substantiated to justify summary dismissal or termination?
Procedural fairness: Did the employer afford Mr. Gelagotis procedural fairness? Was he given proper notice of the allegations and a fair opportunity to respond?
Proportionality of the penalty: Even if misconduct was found, was dismissal a proportionate response?
Decision of the Full Bench – Valid Reason
The Full Bench agreed with the original finding that there was a valid reason for termination. The evidence supported that Mr. Gelagotis had engaged in conduct contrary to the employer’s policies, and these breaches were not trivial.
The FWCFB examined whether Esso had properly informed Mr. Gelagotis of the allegations and allowed him to respond. The Full Bench concluded that the employer followed a reasonable process under the circumstances. While Mr. Gelagotis challenged the thoroughness of the investigation, the Commission found no fundamental defects that would render the dismissal unfair.
The Full Bench ultimately dismissed the appeal, upholding the original decision.
In effect, the Commission confirmed Mr. Gelagotis’s dismissal was not unfair within the meaning of the Fair Work Act.
Reasoning and Analysis – Misconduct as a Valid Reason
Under the Fair Work Act 2009 (Cth), an employer must show a valid reason for dismissal that is “sound, defensible or well-founded.” Serious misconduct (e.g., breach of a vital safety rule or other major policy) can constitute a valid reason. The Commission found that Mr. Gelagotis’s alleged conduct rose to the level of serious misconduct, giving Esso a valid reason to terminate.
The Commission applied the principle that the employee must be notified of the reason for dismissal and given an opportunity to respond.
The Full Bench scrutinized whether Esso had complied with these requirements, ultimately concluding that it did.
The Full Bench carefully reviewed witness testimony and documentary evidence.
The findings at first instance were not deemed “against the weight of evidence” or plainly erroneous. Thus, the Full Bench was reluctant to overturn credibility-based determinations made by the original FWC Member.
Even if misconduct is established, the Commission can consider whether termination was a disproportionate response. In this case, the Full Bench held that given the seriousness of the conduct, dismissal was within the range of reasonable disciplinary measures. The standard for appellate intervention in the Fair Work Commission is relatively high. An error of law or a significant error of fact must be shown before the Full Bench will overturn a first-instance decision. The Full Bench found no such errors. Therefore, the appeal was dismissed.
Significance and Practical Implications – Clarity on Serious Misconduct
This case underscores that serious misconduct in breach of clear company policies will often provide a valid reason for dismissal. Employers must still follow fair procedures even in cases of serious misconduct. While the threshold of procedural fairness need not be identical to a court process, employees must receive sufficient notice and an opportunity to respond.
The decision highlights the Full Bench’s deference to the original findings unless a clear error is demonstrated. It confirms that a robust and well-documented investigation, coupled with an opportunity for the employee to respond, is critical for employers to sustain a termination decision on appeal.
Practical Takeaways for Employers and Employees
Employers: Ensure that policies are accessible, employees are aware of them, and any disciplinary action is conducted according to fair procedures.
Employees: Be mindful of workplace policies, especially around safety and conduct. If faced with allegations of misconduct, it is essential to engage with the employer’s investigation process and present a clear, considered response.
Conclusion
In Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, the Fair Work Commission Full Bench upheld the termination of Mr. Gelagotis, finding there was a valid reason for the dismissal (serious misconduct), and that Esso had acted fairly in the disciplinary process. The case reaffirms the importance of thorough investigations, clear workplace policies, and procedural fairness as key elements for employers to justify a dismissal. It also illustrates how the FWC at an appellate level will show deference to the findings of fact made at first instance unless a clear error is established.
If you are an employee or an employer with questions about Fair Work, employment disputes of general legal advice please contact our offices to schedule a discussion with a lawyer.