Todd Carney and procedural fairness – a picture does not always say 1000 words….

I am completely unsurprised at news over the weekend that Todd Carney has been found to have been wrongly dismissed by Cronulla Sharks.  At the time of his dismissal, I couldn’t help but notice the incredibly short time between his ‘bubbler’ incident going viral online, and  the announcement of the termination of his contract.   Anyone with knowledge of workplace law will know that valid terminations are not that fast.    As we have seen in recent years, both the NRL and many of its clubs have been enforcing a ‘zero tolerance’ policy across the board on player transgressions.  They have leaned heavily on the player code of conduct, and the players’ essential contractual obligation not to ‘bring the game into disrepute’, in enforcing this approach.

But ‘zero tolerance’ is one thing, and procedural fairness is something else.   Employers may be able to deny ‘tolerance’ from the workplace relationship, but they cannot deny natural justice from it.  This is a step too far.   For this reason, wherever you stand on the ‘bubbler’, Todd had a very good case from the very beginning that this termination was unlawful, primarily because the Sharks never gave him a chance to respond to the allegations of wrongdoing.

Interestingly though, in the aftermath of the announcement the Sharks and many members in the media have jumped on the ‘procedural’ issue heavily in their own defence.  The Daily Telegraph  quotes Cronulla chairman David Keogh as saying:

“The big oversight was that someone needed to check that the process being followed was correct.  What’s important to remember here is that it’s not a question of the facts, it’s a question of the process, but the reality of the situation is, the decision would likely have been the same.”

The telegraph themselves take this one step futher, describing (in the article’s photo caption) the original decision as being flawed due to a ‘processing error’.   Underlying this discourse however, is a fundamental misunderstanding of the purpose of ‘procedure’.  The distinction between’substantive’ and ‘procedural’ issues in law is a deep and complicated jurisprudential issue, and I do not want to delve into it too deeply here.  However too many employers still see them as completely separate, and the ‘procedure’  as a cursory or less significant issue.  This  leads to mistakes. While there are some complex issues, the simple one is this:  without procedural fairness, you can’t actually be sure whether or not the right substantive decision has actually been made.

In the wrongful (or unfair) dismissal field,  most employers acknowledge the legal requirement that employees have an entitlement to ‘answer the allegations’.  But the employers’ obligation is not simply to hear the employees side of the story before terminating the employment, the obligation is actually to defer their decision on whether or not to terminate until after the employee has had an opportunity to respond.  This is a mistake made by many, and clearly by the Sharks in this case.   Mr Keogh’s assertion that “the reality of the situation is, the decision would likely have been the same” is not his to make.  That is the purpose of procedural fairness.  In this case if I had I been the decision maker, or workplace investigator, a lot more information would have been useful before making the determination.    What was the context of the prank? Who took the photograph? How was the photograph first uploaded to the internet? How was it propogated? In order to assess Todd Carney’s ‘conduct’, it is important to get across all of the details of the actual conduct, not to simply assess it on the basis of the outcomes of that conduct.  Without giving a genuine opportunity to respond, it is impossible to make this determination correctly.  The unfair dismissal jurisdiction of the Fair Work Commission is littered with examples of employers making this same mistake.*   In my experience as an employment lawyer, I have seen on many occasions an employer obtaining photographic or video evidence of wrongdoing, and subsequently abandoning all procedure.  This is tempting, but a mistake.

Carney has defended himself throughout, saying among other things “I haven’t been in jail, haven’t bashed my wife, haven’t sold drugs to kids or done drugs, and those are players who seem to be allowed back in.”    Without delving into the substantive fairness of this issue – I have to agree with him there.

* The Todd Carney decision was made by the NRL Appeals committee, not by the Fair Work Commission, and because Todd Carney’s income at the time is presumed to be well over the unfair dismissal threshold it is unlikely that he would receive protection under the unfair dismissal jursidiction.   This factual scenario has been used broadly as an analogy for the purposes of speculative discussion only. 

** Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.