February 4, 2019

Misconduct & unfair dismissal: three HR cases

For many employers, terminating a worker’s employment always raises fears of a costly unfair dismissal claim. We look at three recent misconduct decisions, impacting the HR industry, to help you work out exactly what’s likely to lead to a tribunal appearance and where the boundaries lie when it comes to dismissing a worker for bad behaviour.

HR Case 1: The stevedore who sent porn

In Colwell v Sydney International Container Terminals, a stevedore was on leave and spending the night drinking heavily when he decided to send a pornographic video to some of his colleagues via Facebook Messenger.

The following day he regretted his actions and posted an apology on Facebook. However, by then, the video had been sent around and the employer began an investigation into the worker’s behaviour. It formed the view he was guilty of misconduct and subsequently terminated his employment.

The worker claimed the matter was personal and not work related and his employer didn’t have a valid reason to dismiss him, but the Fair Work Commission disagreed. It found that the colleagues who received the video would not have been friends with the worker but for the employment relationship that they shared with him. The Fair Work Commission also found that it did not matter that the worker hadn’t been at the workplace when he sent the video, nor that no formal complaint of harassment was made against the worker.

The HR lesson for employers: In the days of social media, conduct away from the workplace can still be work-related, so long as there’s a sufficient connection to employment.

HR Case 2: The manager (allegedly) behaving badly

In Ward v Reece Limited T/A Reece Group Pty Ltd, the Fair Work Commission ruled an employer had unfairly sacked a manager who had allegedly behaved in a racist and inappropriate way.

Reece alleged the manager had provoked and aggravated a Muslim customer and encouraged one of his female staff to challenge him on his beliefs about the role of women. It also alleged he’d confiscated another of his subordinate’s mobile phones and deleted their Facebook app and threatened to terminate another subordinate’s employment if they took annual leave.

The Fair Work Commission found that the allegations were unfounded and implausible, that a proper investigation was not carried out and that the employer also should have considered his eight years of service to the company before taking the action. It ordered Reece to pay him $32,000 plus superannuation.

The HR lesson for employers: Always carry out a proper workplace investigation into any allegations against a worker before making a decision to terminate their employment. You should also make sure you consider whether the action you’re taking is appropriate given the background facts of their service, as well as the issues at hand.

HR Case 3: The officer who got punchy

In McFarlane v Corrective Services NSW, the NSW Industrial Relations Commission found Corrective Services NSW was within its rights to dismiss a corrective services officer who attacked a colleague after a day at the races.

The officer and his colleague, who was also a family friend, had spent the day drinking. Their day together turned into a physical fight, and the colleague was badly injured as a result. The officer, who was heavily intoxicated at the time, was charged and convicted of assault occasioning grievous bodily harm.

Corrective Services NSW told the officer his employment would be terminated if he didn’t resign. He didn’t and instead presented his employer with a petition signed by more than 100 of his colleagues all of whom wanted him to keep his job.

When the officer was dismissed anyway, he claimed it was unfair and that Corrective Services NSW hadn’t properly considered all the factors including his 16 years of services, the financial impact of the termination, his age (he was 55) and his unblemished record of conduct.

The NSWIRC found that even when the factors were weighed up against the officer’s misconduct, Corrective Services NSW was justified in dismissing him. In reaching this conclusion, it also cited an express clause in the NSW Government Sector Employment Act, which expressly stated “misconduct” could include after-hours and off-duty conduct.

The HR lesson for employers: Even when you weigh up all the factors, there are still times misconduct will justify dismissal. Just make sure you always get proper advice before you go through with it.

Do you have a HR case that needs looking at?

Terminating a worker’s employment is always a serious decision for any employer. It also one fraught with risk, so it’s important to know exactly where you stand. If you’d like to discuss anything you read in here and how it affects you, get in touch with the Catalina Consultant’s team today.

say hi to our author

Merilyn founded Catalina Consultants in 2012 on the belief that all organisations, regardless of size, should have access to top quality bespoke HR services. She enjoys working closely with her clients and believes that the best results are built on relationships of rapport, trust and authenticity. Growing up, Merilyn had her sight set on stardom and dreamed of becoming an actor. She also sang and played the piano, but ended up studying accounting and HR. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. Merilyn loves to travel with her family, with South Africa being one of her most memorable destinations.

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