If a whistleblower's conduct involves misconduct
and/or continued unfounded allegations of the theft, illegal
act or wrongdoing, termination may be justifiable.
Whistleblowing by an employee may be beneficial ultimately
to the employer, for example by leading to improved work
practices. Sometimes there may even be a duty on the employee
to come forward with wrongdoings in the workplace. How the
employee and the employer handle blowing the whistle is vital.
If this involves the employee himself or herself committing
misconduct, say in the way the employee obtains the information
about the wrongdoing or in the manner in which any allegations
are made, the private sector employer may be justified in
terminating the whistleblower's own employment. In the
words of Senior Deputy President Hamberger:
"Whistleblowers" have an important role to play in
our society, which deserves protection. No employee should
face the risk of being dismissed merely because he or she
makes a serious complaint of wrongdoing by a manager.
However, the mere fact that a complaint turns out to be
wrong, by itself, should not lead to termination. However
such complaints are of their nature inherently sensitive and
needed to be handled in an appropriate manner, both by the
complainant and the employer.'
These issues emerged in the recent case of Chrysostomou v Autohaus
Classic BMW trading as Trivett Classic Pty Ltd 
AIRCFB 120, in which the full bench of the Australian
Industrial Relations Commission upheld a Senior Deputy
President's decision that termination of employment was
not harsh, unjust or unreasonable, where the termination was
for behaviour at work which involved whistleblowing.
Facts: suspicion by the employee of manager's
A sales scheme through a vehicle company provided for
rewards of retail store gift vouchers to sales staff for
attaining certain sales levels. The motor salesman employee
(the applicant in the case) opened an envelope containing $1200
of sales vouchers and a list for the distribution of those
sales vouchers to various employees. The envelope was addressed
not to him but to his manager, and he also photocopied part of
the envelope contents.
When the vouchers were handed out by his manager to various
employees as reward, the applicant noted that not all vouchers
had been distributed and was concerned that his manager had
stolen some of the vouchers for his own use. He did not enjoy a
good relationship with his manager. He told this suspicion to
other employees, and then he accused the manager in front of
another manager in an aggressive manner — launching
into a full scale attack. He was unwilling to consider that he
may have been wrong when the apparent discrepancy was explained
to him. The applicant's conduct was investigated and he
Valid reason for dismissal
Senior Deputy President Hamberger decided that the whistleblower had
committed misconduct when he opened the envelope containing the
gift vouchers and copied the documents, as he acted without
authority to open the document and he had no legitimate reason
to do so.
Further, "the course of action he then embarked on was
entirely inappropriate" as he discussed his suspicions
with the accountant and the assistant sales manager, and then
"launched into a full scale attack" on his supervisor
manager in a meeting with him and another general manager. This
was done aggressively, with raised voice and stabbing his
finger in the air. Significantly, he was not willing to
consider that he may have been in the wrong about his
suspicions and continued to make allegations during the meeting
and subsequently. This occurred even after the discrepancy had
The full bench on appeal examined the evidence and concluded
that there was no basis to overturn the findings of the Senior
Implications for employers
This case raises the broader and important question of how
employers and employees treat whistleblowing involving
allegations of theft or wrongdoing within the workplace. The
employee's conduct in this case provided a valid reason
for termination because the way he went about gathering
information and communicating his suspicions amounted to
Employers should be aware that they will not ordinarily be
justified in terminating an employee's employment
simply for blowing the whistle. Where however the approach
chosen by the employee to blow the whistle involves the
commission of misconduct and/or continued unfounded allegations
of the theft, illegal act or wrongdoing, a valid reason for
termination under the Workplace Relations Act 1996
(Cth) may be made out.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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