Notice would have made dismissal valid

Moskou v Specialist Diagnostic Services Pty Ltd [2015] FWC 8608 is an example of where summary dismissal for what occurred was deemed harsh but dismissal with notice would have been deemed fair.  A courier driver, who was suffering from gastroenteritis, defecated in a client’s carpark and failed to clean up properly or report the incident to his manager.  Commissioner Cribb decided the actions constituted misconduct but not serious misconduct warranting summary dismissal and ordered compensation of one week’s pay in lieu of notice

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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

Questions about this article or about employment and workplace matters, our specialist employment and workplace relations team provide advice in all matters related to employment law.

 

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Ready, aim...don't fire!

A small business owner has been fined almost $30,000 for unfairly dismissing an employee.

 

Acupuncture Australia Pty Ltd summarily dismissed a sales assistant for allegedly stealing from the business. The employee had worked for the company for three years when the managing director began to suspect her of theft. The sales assistant was sacked on the spot and reported to the police, despite a lack of proof of any crime.

 

The managing director was unable to provide any evidence to the Fair Work Commission of theft or fraud against the business and the police were not proceeding with the matter further.

 

The Fair Work Commission found the dismissal was “appalling” and “inexcusable” and ordered the company pay its former employee $29,000 as compensation.

 

If you suspect an employee is committing an offence or act of misconduct, it is important to investigate the matter properly and in accordance with the Fair Work Act 2009 (Cth).  

 

Even if you are a small business employer, you must ensure all employees are treated fairly and in line with the Small Business Code.

 

An experienced workplace relations lawyer will be able to explain the step by step process needed to investigate any allegations of misconduct. Act properly and avoid being penalised for protecting your business.   

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