Dirty talk costs a career

 

A police officer who was dismissed for serious misconduct for breaches of the New South Wales Police Force Harassment, Discrimination and Bullying Policy and Guidelines has failed in his attempt to have his employment reinstated: Torres v Commissioner of Police.

Serious misconduct was constituted mostly by Mr Torres asking junior colleagues personal and intrusive questions about sexual activity.

Mr Torres had an impressive twenty six years of service including a commendation for bravery.

This, however, was not able to save him.

His explanations that there was a culture of dirty talk where he worked and what he admitted to saying was meant as a joke were not accepted.

Workplaces must be safe for employees. 

Discussions that are sexually explicit and seen as sexually harassing cannot be tolerated.

In this case the employer could point to policy guidelines that made clear the rules and expectations in the workplace.

In our experience many employers do not have appropriate written policies and procedures in place and don’t have proper training to ensure that any policies are implemented.

Employers must educate their employees about how to conduct themselves at work and have clear policies that state what is in and what is out for conversation and behaviour.

Nevett Ford Melbourne lawyers can provide timely and proactive advice to employers on appropriate discipline and dismissal of employees based on misconduct in the workplace.

 

Read More»

Reinstatement is the primary remedy

Under the Fair Work Act 2009 the primary remedy for an unfair dismissal is reinstatement of the employee to employment.

Yet even where reinstatement is sought, the Fair Work Commission does not often order it.

One reason seems to be that employers consistently argue that reinstatement is simply not viable because the trust and confidence necessary for a continuing employment relationship has been broken.

The decision in Singh v Metro Trains Melbourne Pty Ltd [2016] FWC 2291 demonstrates the circumstances in which the Commission will order reinstatement.

Ms Singh was a station assistant who was dismissed for the alleged theft of lost property.

The Commission found Metro’s investigation flawed and that short of stealing the lost property Ms Singh had dealt with it in breach Metro’s lost property policy.

Ms Singh had an impeccable work record over 10 years of service and maintained her right to be reinstated as the proper remedy for her dismissal.

Although she had applied for other jobs after she was dismissed she had not been successful in obtaining any.

What influenced the Commission in ordering reinstatement were two factors:

1. Distrust of an employee by the employer cannot of itself be a sufficient reason to decline reinstatement, otherwise no employee would ever be reinstated where the employer believed or suspected the employee had engaged in misconduct.
   
2. Metro was a large employer and there were many roles within it that Ms Singh could perform at different locations so that the element of trust and confidence was of diminished importance.

Read More»

Conduct unbecoming means no remedy

An order for reinstatement or the payment of compensation as the remedies for unfair dismissal are discretionary and not mandatory: Jeffrey v IBM Australia [2014] FWC 8166 is a case in point.

After long periods of absence because of illness IBM dismissed Ms Jeffrey, a business analyst, for the reason that on medical grounds she would not be able to fulfil the inherent requirements of her role for the foreseeable future.

The Commission found that the medical evidence upon which IBM relied did not support that conclusion and therefore found that the dismissal was not for a valid reason.

When it came to remedy the Commission found that the conduct of Ms Jeffrey at arbitration worked against any order for reinstatement or compensation being made in her favour.

The Commission was especially critical of Ms Jeffrey using the hearing to besmirch the reputation of various IBM employees without foundation and as a forum in which to raise issues, which whilst they arose from the employment relationship, were not relevant to her dismissal.

Ms Jeffery represented herself at arbitration and her underlying illness may well have affected or impaired her judgement on matters.

Even so the fact that a remedy was not ordered is a salutary lesson to all employees contesting their dismissal: be relevant, do not make gratuitous or unfounded accusations and comply with rulings and directions of the Commission.

Questions about this article or about employment and workplace matters, please contact our specialist employment and workplace relations team.

Read More»

Out of hours activity and the link to employment

So if work hours are 9.00  am to 5.00 pm does this mean that what people do between 5.00 and 9.00 is off limits to the scrutiny and sanction of employers?

The issue is coming into focus with the explosion of electronic communications.

The internet and social media allow people to have a very public soap box for their views and activities and for employers to be part of the audience, even if they weren’t specifically invited.

Further, the internet may have meant that pornography no longer has to be purchased publicly but the risk of exposure to enjoying it has moved to a new dimension.

As with every innovation it’s all good fun until someone gets hurt.

Take Ms Fitzgerald, a hairdresser who complained on Facebook about the amount of her Christmas bonus.  Sacked after her employer read the post, she had to endure a conciliation and a one day hearing to be told that her dismissal was unfair and be awarded $2,300.00 compensation: Fitzgerald v Dianna Smith T/as Escape Hair Design [2010] FWA 7358.

Or take Mr Griffiths, a 25 year career public servant.  He had viewed pornography on a work laptop after hours at home, using his own internet service provider on eight occasions over three weeks.  He was detected when the laptop was audited and his browsing history analysed.  Mr Griffiths did himself no favours by first maintaining the access was accidental and then that it was “research”: Griffiths v Rose [2011] FCA 30.  His dismissal was upheld.

Or take Mr Stutsel, a 22 year veteran with Linfox.  Armed with a Facebook page that his wife and daughter had established for him he posted abuse against two of his managers, which resulted in his sacking when Linfox representatives discovered it.

Mr Stutsel was luckier than Mr Griffiths but had to work harder than Ms Fitzgerald to find out that his dismissal was unfair and be reinstated.

Linfox appealed to both the Full Bench of Fair Work Australia and then to the Full Court of the Federal Court in vain.

It is difficult to read the FWA decisions: [2011] FWA 844 and [2012] FWAFB 7097, and not be left with the impression that the real evil in the case was not what Mr Stutsel said but that Linfox did not have a formal policy on social media.

The one thing Ms Fitzgerald, Mr Griffiths and Mr Stutsel all have in common is that they did not intend their employers to find out about what they were doing.  Had any of what they did occurred in office hours, there is little question that all sackings would have been upheld.

So as great and convenient as the internet is, people use it at the peril of their employment even out of hours.

 

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

Read More»