Sticks and stones may break bones but names can get you sacked

Many employers have policies or codes of practice to govern the relationships between employees.

Employees who abuse their colleagues or gossip about them can face dismissal as a sanction because what they say is a breach of the employer’s polices or codes.

The Fair Work Commission recently heard two unfair dismissal applications that related to misconduct based on what employees said.

In Sayers v CUB Pty Ltd [2016] FWC 3428, the Commission found that a dismissal based on an employee swearing and racially abusing a colleague was justified.

In Beamish v Calvary Health Care Tasmania Ltd [2016] FWC 1816 the Commission found that a dismissal based on emails gossiping about or disparaging a manager was not justified although the emails showed a lack of judgment.

In both cases the Commission found that what Mr Sayers and Ms Beamish said were breaches of their respective employer’s policies or codes on how to behave towards others.

The language Mr Sayers was found to have used was threatening, racially motivated and littered with four letter words.

Mr Sayers knew what the correct procedure was for complaining about a colleague: racially abusing him was not the way to go.

Fifteen years of unblemished service with CUB and an otherwise good relationship with management did not help Mr Sayers.

The Commission, like CUB, showed no tolerance for racial abuse and the dismissal was upheld.

Ms Beamish had been sarcastic and disparaging in her comments about a manager. Some of what she said was funny – but at the manager’s expense.

Although not abusive or racially motivated what she said was still contrary to Calvary’s values distilled in its code of conduct as “hospitality, healing, stewardship and respect”.

Ms Beamish apologised at the first opportunity and recognised her behaviour as immature and inappropriate.

The Commission was prepared to reinstate her because it was satisfied she would be “welcome back by the overwhelming majority of employees”.

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Gun mistake not grounds for summary dismissal

An Australian champion clay shooter, who had Senator David Leyonhjelm as his support person at the meeting to discuss his future employment was found to have been fairly dismissed but entitled to notice: Waters v Goodyear Australia Pty Limited [2016] FWC 1991.

Mr Waters breached a number of his employers’ policies when he acquiesced in a person whom he was mentoring in clay shooting bringing a gun into the vicinity of his workplace.

After a comprehensive investigation, the employer found that Mr Waters’ actions constituted serious misconduct.

Whilst Commissioner Cambridge agreed that Mr Waters had breached the trust and confidence inherent in the employment relationship to a degree to warrant dismissal he was not satisfied that Mr Waters had set out deliberately to do so in the incident giving rise to his dismissal.

As his employment contract provided for four weeks notice, Mr Waters was awarded compensation for that period.

The case also suggests that the way in which a support person acts at a meeting can affect a finding on the degree to which the employment relationship has broken down and cannot be retrieved.

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Don’t take it so seriously – the difference between misconduct and serious misconduct

A pool supplies business in Sydney summarily dismissed its general manager for going “behind their back”, making disparaging comments about the business and “betraying the business”. Entram Pty Ltd accused its general manager of preventing a sale of business and breaching his implied duties to act in good faith.

Judge Shenagh Barnes of the Federal Circuit Court accepted the employee’s conduct amounted to misconduct; however, it was not found to warrant serious misconduct and, therefore, summary dismissal.

As a consequence, the employer was ordered to pay $30,283 in damages for failing to provide the employee with notice of termination.

For an employer, the key difference between terminating an employee for misconduct versus serious misconduct will be the provision of notice.

An employee who commits serious misconduct can be terminated on the spot and the employer will not be required to provide notice of termination.

An employee who is dismissed for misconduct must be provided notice of termination. They can be directed to work out their notice period or paid in lieu of notice, at the employer discretion.

As demonstrated by Jeavons v Entram Pty Ltd [2015] FCCA 3457 the consequences of summarily dismissing an employee for misconduct can be significant. Although the employee was terminated in June 2012, a judgment was not handed down until December 2015, meaning the business was in legal limbo for three and a half years. 

To protect your business and insure yourself against such penalties, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111 about the right way to terminate an employee for misconduct and serious conduct.

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