When is a warning not a warning? When it’s a chat

 

When is a warning not a warning? When it’s a chat

 

 

A worker was awarded nearly $29,000.00 in compensation from his employer after the Fair Work Commission found his dismissal for serious misconduct to be harsh and unreasonable: Anderson v Thiess Pty Ltd [2014] FWC 6568.

 

Ronald Anderson, 65, worked for Thiess Pty Ltd in Queensland for over a decade until he was summarily dismissed in June 2013 for forwarding a highly offensive email about Muslim radicals to a group of co-workers using his work email.

 

Thiess based the dismissal on the fact that Mr Anderson had breached the company’s code of conduct and that Mr Anderson had been previously warned about inappropriate use of company email. Thiess also argued that it had many employees of the Muslim faith and that the company did business with Indonesia, a predominantly Muslim country and Mr Anderson’s conduct would damage the reputation of the company.

 

Mr Anderson argued that he was unaware that the email he sent would be grounds for dismissal and that if he had been aware he would not have sent the email. He also argued that other employees had sent offensive or inappropriate emails but had not been dismissed. He also claimed that he was unfamiliar with proper use of email.

 

Although the Commission found that there was a valid reason for the dismissal two actions by Thiess persuaded it that Mr Anderson was still entitled to a remedy. First, an informal chat that a manager had had with Mr Anderson about emails three months before his dismissal was found not to be a warning that put Mr Anderson on notice that a repeat would mean his employment was in jeopardy. (This chat was the warning on which Thiess sought to rely). Secondly, as part of Thiess’ investigation, his immediate manager, had rated Mr Anderson’s behaviour as warranting a warning but this had been overridden by senior management and no consideration was given to suspension.

 

The Commission was also swayed by the fact that Mr Anderson was 65 years old and would have trouble finding future employment. Mr Anderson asked to be reinstated but the Commission accepted Thiess argument that it did not want someone with Mr Anderson’s values as an employee, so compensation was ordered.

 

It is an interesting case because on the face of Mr Anderson’s actions a dismissal could rightly be justified. What let Thiess down and gave Mr Anderson a toe in the door were matters to do with process.

 

Greg Doran

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