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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