Australia: Workplace Conduct, Whistleblowing And Termination Of Employment

Last Updated: 16 May 2008
Article by Saul Harben

Key Point

  • 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 [2008] 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 theft

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 was dismissed.

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 been explained.

The full bench on appeal examined the evidence and concluded that there was no basis to overturn the findings of the Senior Deputy President.

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 misconduct.

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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