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One Offensive Comment, Four HR Mistakes: Why This Dismissal Was Found Unfair

One Offensive Comment, Four HR Mistakes: Why This Dismissal Was Found Unfair

When an employee told a colleague, “why don’t you go get molested…”, it was the final straw for his employer.

But while the behaviour was appalling, the Fair Work Commission still ruled his dismissal unfair because of the holes in the HR process.

Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246

In Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246, the Fair Work Commission found that even though the employee engaged in bullying and sexual harassment, his dismissal was still unfair because the club failed to follow basic procedural fairness.

What Happened

  • The employee: Scott Ashburner worked at St Marys Rugby League Club.
  • The conduct: Over several months, he swore repeatedly at co-workers, clashed with a colleague, and made a deeply offensive comment to a female staff member: “why don’t you go get molested…”.
  • Complaints flying both ways:
    • The colleague complained about his comment and ongoing arguments.
    • Ashburner, in turn, lodged complaints that this same colleague was spreading sexualised rumours about him.
  • HR’s response:
    • Ashburner was given a letter outlining some concerns, and told to attend another meeting.
    • Before that process played out, he was called in, summarily dismissed, and handed a letter backdated to the previous day ending his employment.
  • The gaps: He was never clearly told that dismissal was on the table, nor provided full particulars of the allegations, nor given a genuine chance to respond before the decision was made.

 The Fair Work Commission’s Findings

  • Valid reason? ✅ Yes. His swearing and the “why don’t you get molested” comment breached the club’s bullying and harassment policies, amounting to misconduct and sexual harassment.
  • Unfair dismissal? ❌ Yes. HR admitted:
    • They hadn’t investigated his counter-complaint.
    • They didn’t warn dismissal was a possible outcome.
    • There were previous historical issues where potentially management teams had not dealt with the building tension between the employees.
    • They made the termination decision before the meeting, denying him a fair go as evidenced by a termination letter dated the day before the termination of employment meeting.

The Commission concluded that while the conduct justified discipline, the procedural flaws made the dismissal harsh, unjust and unreasonable.

Lessons for HR

This case underlines a fundamental rule: how you dismiss, matters as much as why.

  1. Investigate all complaints including counter-allegations.
  2. Be upfront about risk tell employees if dismissal is a potential outcome.
  3. Provide particulars spell out allegations clearly in writing.
  4. Give a real chance to respond before a final decision is made.
  5. Don’t backdate or pre-decide transparency builds defensibility.
  6. Serious and instant dismissal, be cautious even when the matter is a “slam dunk as such”, there is still caution to take and in particular can you provide an argument that there is procedural fairness with a termination of employment.

Unfortunately, this is another case of a dismissal with a valid reason but still considered unfair.

A process falling short or not done at all always risks being found unfair in the Fair Work Commission even when there are commercial or even cultural reasons to do so.  This must all be weighed up.

Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on dismissal decision making and responding to unfair dismissal claims to protect HR teams and Employers.

Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au.  All Employers receive an obligation-free consultation.