Australia: Employees behaving badly in 2016

Don't jump to conclusions, be fair, and set clear expectations for your employees.

It's that time of year again. As 2016 draws to a close, "best of" lists of books, music and films start appearing. This round up is a little different; it's employees behaving badly in 2016 and the response of the Fair Work Commission to such behaviour. (Of course, as we will see, employers aren't always perfect either.)

A recurring theme in 2016 was the media breathlessly reporting that various types of misconduct by employees don't justify dismissal, implying the Commission condones such behaviour. As you will see, the position is often more nuanced and illustrates that unfair dismissal cases turn on the circumstances of the case and constitute a balancing act between a range of considerations.

Mind your language!

In one case, an employee was terminated for, among other things, calling another employee a "dirty gringo c***". The Commission observed:

"Community condemnation regarding abusive terms associated with race, colour, nationality or ethnicity is stronger now than it has been in the past and rightly so. It is no longer acceptable to defend a slur that is racially based with the explanation 'But I meant no offence' or 'My comment was misinterpreted'."

The expression was determined by the Commission to be offensive, degrading and a racial slur. The employee was also found by the Commission to have made a threat of violence when he used the expression, "I'll fix your little red wagon".

Even though the employee was 57 years old at the time of termination, well regarded by site management, recognised as a good worker and had an unblemished employment record, his conduct was found to be a very serious breach of the company's applicable policies and the Commission, following previous decisions in relation to racial abuse in employment, found that the dismissal was not unfair.

In another case, an employee called the Chief Executive Officer of the employer an "old c***". In this case, however, the Commissioner held that the dismissal was unfair. While it was found there was a valid reason for dismissal, the relevant exchange had occurred after an inappropriate response from the CEO to an inquiry by the employee about overtime payments.

There were also procedural deficiencies in the conduct of the dismissal. The employee was dismissed by a text message which stated:

"the old man here.
Do not come back tomorrow thanks"

In this regard, the Commission held:

"I do not accept that a text message is an appropriate mechanism to advise an employee of dismissal and the reasons for it. The purpose of such notification is to trigger other incidents of procedural fairness such as an opportunity to respond to a reason to dismiss based on capacity or conduct. An employee who is notified of a dismissal by text message and simultaneously informed that the dismissal is immediate, has not been notified of the reason for dismissal in the context of s.387(b) of the Act and the related provisions relevant to procedural fairness."

In another case, an employee was on a rostered day off. After he had been contacted by a colleague to address a work issue on that day, he rang that colleague and abused her using terms such as "don't f****** call us ever" and, after some further discussion, ended that conversation with the colleague by yelling at her "you stupid c***".

The Commission found that this behaviour was not an aberration; rather, the employee had on a number of other occasions ridiculed this colleague in front of others and also insulted her.

The Commission held the dismissal was not unfair. The employer had a valid reason for dismissal, had notified the employee of the reason for dismissal and given the employee an opportunity to respond.

Drugs

In this case, an employee admitted smoking marijuana the evening before he was involved in a forklift accident with another employee. (It was found the employee was not at fault for the accident itself.)

As a result of a positive drug test, the employee had his employment terminated pursuant to the "zero tolerance" Drug and Alcohol Policy (D&A Policy) of the employer.

The employee argued he had been advised during induction training not to smoke marijuana within three to six hours before his shift, and asserted that the relevant consumption had occurred outside of this window.

After weighing up the conflicting evidence, the Commission found, on the balance of probabilities, that the employee consumed a significant amount of cannabis during the morning of the day of his shift. The Commission held that it was reasonable for the employer to have and enforce a "zero tolerance" D&A policy, the employee was afforded procedural fairness and while the situation facing the employee was "regrettable", the dismissal was not unfair.

Porn

In a case which became something of a media cause célèbre, an employee who accessed, downloaded and stored pornographic material on a mobile phone and laptop computer provided by the employer, and probably downloaded some of that material "walking the streets of Port Macquarie" was found to have been unfairly dismissed.

The Commission noted:

"Ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct. Unless the employee worked in the Sex Industry, it would be difficult to contemplate that the viewing, downloading and/or storage of pornographic material represented proper, work-related use of the employer's equipment. The use of employer-provided equipment for non-work-related purposes should be assessed carefully and in context. There are obvious differences between using an employer provided laptop computer to conduct, for example, personal internet banking, as opposed to accessing and downloading pornography. However, particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work." [emphasis added]

In this case, however, there was no applicable company policy and the processes for dealing with the dismissal were "abrupt" denying the employee opportunity to respond to the underlying reasons for the dismissal. As such, this particular dismissal was held to be unfair. This case was not, however, contrary to some media reports, a "green light" from the Commission for employees to download pornography on work devices.

Social media "terrorism"

One case combined two hot-button issues of 2016 - social media and terrorism.

In this case, the employee, an airport baggage handler, shared on his Facebook account a post from the controversial Hizb ut-Tahrir organisation adding the words, "We all support ISIS". This was one of a number of posts about which the employer was concerned.

The employee explained that he was being sarcastic. The Commission found that it would have been prudent for the employer to spend more time investigating the assertions of the employee that he was actually opposed to ISIS, as well as the circumstances of the other posts of concern.

The Commission noted:

"A more thorough investigation including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made."

The dismissal was found to be unfair. The Commission did, however, observe:

"My finding, however, should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing. I expect that even if the ISIS post had been made within the 'Australia, The Last Castle' secret Facebook group, he would have been met with derision and likely reporting to authorities of his post."

Some tips for 2017 and beyond

Human nature being what it is, it's every bit as likely employers will be confronted with the same type of conduct issues in 2017 as they were this year. The cases above give rise to some lessons for employers:

  • Don't jump to conclusions. Keep an open mind. Always conduct an appropriate, thorough investigation that seeks to objectively determine the relevant facts.
  • Always afford procedural fairness, even if you think it's an open and shut case with the misconduct so apparently egregious the outcome should be a foregone conclusion.
  • Take into account the impact on the employee of a dismissal. This may mean a consideration of factors such as length of service, personal circumstances and capacity to secure alternative employment. The Commission will consider these factors in assessing harshness.
  • Policies are important in establishing behavioural expectations. They must be widely promulgated, in clear terms, consistently applied and reasonable. (For instance, a "zero tolerance" drug and alcohol policy may not be appropriate for all workplaces.)
  • Beware moral judgments. The Commission readily accepts that employees aren't expected to be perfect and that being something less than a paragon of moral virtue will not, of itself, justify dismissal.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
PCC Employment Lawyers
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
PCC Employment Lawyers
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions