Davies v Hip Hop Pty Limited t/as Hippity Hop Child Care [2011] FWA 776 (4 February 2011)
Backstabbing worker awarded compensation for dismissal
Tara Davies was employed by Hippity Hop Child Care (the respondent) as a Group Leader at their child care facility in Pakenham, Victoria. Her employment was terminated on 11 June 2010 after being confronted for a breach of the 'no backbiting' policy at the centre.
The relevant policy was as follows:
'Back biting is NOT TOLERATED at Hippity Hop Childcare; it is unacceptable and can lead to the breakdown of unity between staff within the centre, making it an unpleasant place to work. Any staff member caught back biting may result in immediate dismissal'.
At the meeting held to discuss her behaviour, Ms Davies was not told who had accused her of backbiting or what she was supposed to have said, on the basis of confidentiality.
At hearing, the applicant admitted making negative comments about staff members but said that as such comments were true they were not 'back biting'. The comments were that one staff member was lazy and that another was not a competent carer.
In deciding to award compensation for the dismissal, Commissioner Ryan took into account that the applicant was not told the potential outcome of the performance meeting beforehand, nor was she invited to bring a support person. The applicant was not given the opportunity to respond to the reason for the dismissal before the effective dismissal occurred. A contention on behalf of the respondent that the applicant had abandoned her employment was not supported by the evidence, as it was clear the proprietors of the centre were aware that the applicant felt she had been dismissed. Finally, it was found that the negative comments made by the applicant did not of themselves constitute a valid reason for dismissal.
In that regard, Commissioner Ryan stated that:
'The respondent's policy on 'back biting' is
an extremely blunt instrument.
Any instance of 'back biting' committed by an employee
would be a breach of the respondent's policy and make the
employee liable to instant dismissal. The respondent's policy
makes no distinction between malicious and untrue comments made
behind a person's back with the clear intention of destroying
the persons reputation and comments made behind a person's back
which are true and which would not result in serious damage to the
employees reputation. The very bluntness of the respondent's
policy means that mere breach of the policy cannot constitute a
valid reason for dismissal. The nature and intent and effect of the
'back biting' need to be considered'.
The comments made by the applicant were a breach of the policy. However, they did not have the necessary odiousness attached to them to justify dismissal. The comments themselves and the fact that they constituted a breach of the respondent's 'back biting' policy would have warranted some form of disciplinary action but something short of termination of employment.
The applicant was awarded $9,480 after a 20% reduction with regard to the actions of the applicant that contributed to her dismissal.
This decision provides another reminder that even in instances of small enterprise policies need to be reasonable, each case will turn on its own facts, and procedure must be followed, for a dismissal to be upheld by Fair Work Australia.
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