All employers need to be proactive in implementing the standards of workplace behaviour they want to achieve or risk being unable to defend an unfair dismissal claim.
There is a constant tension between the rights of employers to dismiss workers who engage in misconduct and the protection of employees from unfair dismissal. The balancing act can be confusing for all in the workplace. This was on show in a recent decision of the Fair Work Commission (FWC).
In Goodall v Mt Arthur Coal Pty Ltd  FWC 4129, the applicant was a machine operator at a coal mine and had what was described as "an exemplary employment record throughout his almost five-year period of employment." He was dismissed from his employment when he used the two-way radio system for nearly two hours of a 12.5 hour night shift and engaged in inappropriate conversation with his fellow machine operators. The content of the conversations were not contentious and consisted of offensive, sexist and religiously vilifying comments, according to the FWC.
In relation to both the offensive nature of the conversations and the excessive use of the two-way radio, the FWC found that the employer had a valid reason to dismiss the applicant and that it had met its procedural fairness obligations. However, Commissioner Saunders found the dismissal to be harsh and ordered the applicant's reinstatement.
In coming to this decision, Commissioner Saunders noted that generally where a valid reason for termination exists, it may be harsh, unjust or unreasonable in circumstances where:
- the actions of an employee relied upon by the employer for termination are considered in isolation from the context of the employee's disciplinary history;
- the broader context of the workplace is ignored; and
- the personal or private circumstances of the employee.
The standards you accept...
The FWC made a number of references to policies implemented by the employer in relation to employee behaviour and discipline. Commissioner Saunders found that the applicant had breached a number of the employer's policies in making his comments, however the use of profanities and robust language were common at the applicant's workplace in and, more broadly, in the industry. This, combination of factors placed the conduct at the lower end of the scale of seriousness and did not justify dismissal.
While Commissioner Saunders agreed that the applicant's vilifying comments were extremely offensive and inappropriate, he categorised the comments as being in the mid-range on a scale of seriousness. This was because the comments were not directed at any particular employee or group of employees. Had the applicant done so, Commissioner Saunders suggested that this would have resulted in the termination not being harsh, unjust or unreasonable. However, the fact that applicant knew of no one being of the particular religion he criticised as being employed at his workplace was in his favour.
Practise what you preach
During the proceeding, it was further found that the use of the two-way radio in the way that the applicant was doing so was not expressly authorised by the employer. Despite this, evidence was produced to show that it was common practice for the specific channel the applicant was broadcasting on to be used as a de-facto "chat channel" for workers to stay alert during late night work. Commissioner Saunders found that these contextual matters meant that the applicant's more casual use of the radio could not be deemed serious misconduct when the employer had allowed its use in this manner previously without directing its employers to cease doing so.
What this decision highlights is the importance of employers being proactive in dealing with conduct in the workplace that is not in line with the workplace's values and policies. This case involves the use of a two-way radio, however other mediums available in the workplace, such as intranet services, instant messaging, emails, social media outlets and notice board facilities pose similar risks. If an employer is considering dismissing an employee for questionable conduct, they should consider:
- the employee's history. It will be more likely that the dismissal will be upheld if there is evidence of past disciplinary issues relevant to the conduct being relied on;
- how vigorously the employer has implemented its policies in the past. If the policies have historically been rarely enforced and conduct has gone undisciplined it will be more difficult to show that the dismissal was not harsh, unjust or unreasonable. Training including the regularity of refresher training will also be considered; and
- whether certain conduct has been indirectly accepted. Similarly to policy implementation, any behaviour that an employer believes is below the standards they expect from their employees should be identified and addressed as soon as possible to defend.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.