In the recent decision of Ellem v Gladstone Area Water Board  FWC 1893 (31 March 2016), the Fair Work Commission found that it was fair to dismiss an employee for refusing to comply with the complaints procedure.
Mr Ellem worked as a Senior Land Officer. After unsuccessfully applying for an internal Capital Works Coordinator position, Mr Ellam complained about the application process and outcome to his local member of parliament (rather than his employer). Mr Ellem’s complaint was referred to the Queensland Ombudsman, the Crime and Corruption Commission and then back to his employer. His employer then engaged a law firm to conduct the investigation.
Mr Ellem subsequently applied for access to the employer’s recruitment records using a form available on the employer’s website. After being informed by the operations manager that he had used the wrong form, Mr Ellem sent an email to his employer’s general enquiries email address, directed to the operations manager, accusing him of being a “bully boy” and referring to aspects of the investigation into his complaints.
Mr Ellem was subsequently given a number of written directions not to use the general enquiries email address to communicate about the investigation, and advised he should instead email the employer’s directors directly to maintain confidentiality in the investigative process. Mr Ellem was also warned not to make disparaging or inappropriate comments about his colleagues, and advised that a breach of these directions may result in disciplinary action. Mr Ellem was also offered confidential counselling.
Despite these warnings, Mr Ellem continued to use the general enquiries email address to threaten to sue senior managers for allegedly hiring a friend to work at his employer’s place of business. These threats were repeated in a letter of demand sent by post and email to several management staff. Mr Ellem was subsequently suspended and summarily dismissed.
Mr Ellem made an unfair dismissal claim, which the Fair Work Commission ultimately dismissed. While Mr Ellem argued that he was dismissed for making complaints, Commissioner Booth was satisfied that he was actually dismissed for failing to comply with his employer’s reasonable workplace directions relating to confidentiality and compliance with the employer’s code of conduct.
In particular, Commissioner Booth was satisfied that Mr Ellem’s emails to the general enquiries email address breached the directions given to Mr Ellem, and also his employer’s code of conduct. Commissioner Booth held that Mr Ellem’s explanation that he used the general enquiries email address to inform the company of his intention to sue as a courtesy demonstrated that “he was not prepared to accept a reasonable direction from his employer”. Commissioner Booth then went further by concluding that Mr Ellem’s conduct was “deliberate, unacceptable and had the potential to cause considerable disruption in the workplace”, and that this provided a valid reason for his dismissal.
Commissioner Booth was also satisfied that the employer’s dismissal process was procedurally fair. Mr Ellem was given a reasonable opportunity to respond to the allegations against him, and his responses were apparently considered before his employment was terminated.
Lessons for employers
The Commission’s decision reinforces that an employer can dismiss an employee who deliberately or repeatedly breaches reasonable workplace directions and policies.
However, before deciding whether to discipline an employee for failing to comply with a workplace direction or policy, an employer should ensure that:
- the direction or policy is lawful and reasonably necessary to protect the employer’s interests;
- the employee is aware of the direction or policy;
- the employee is given a reasonable opportunity to respond to any allegation that he or she has failed to comply with the direction or policy; and
- any disciplinary action is proportionate.
In certain cases, employers may be justified in dismissing an employee for failing to comply with a workplace direction or policy about how a workplace complaint should be made, or about what should happen while it is being investigated or following any outcome.
However, it is also important that employers remember that the Fair Work Act 2009 prohibits an employer from dismissing an employee, or taking adverse action against that employee, because the employee has made a complaint or inquiry about their employment.
An employer accused in a general protections claim of breaching that prohibition will need to prove that the fact that the employee had made a complaint or inquiry was not a reason for the relevant dismissal or adverse action. Proving this can be especially difficult when a person involved in the decision to dismiss or take adverse action against an employee is also the subject of the complaint, and such circumstances increase the likelihood that a general protections claim will be made (as seen in last year’s Alert about Murray v The Peninsula School & Anor  FCA 447).
Care must be taken even when an employer believes an employee’s complaint to be vexatious. The Fair Work Act 2009 (Cth) is designed to protect an employee’s right to make complaints and inquiries generally, and even if it turns out the complaint or inquiry cannot be substantiated. While there is case law that suggests an employee will not be protected when making a complaint that they know has no reasonable grounds, or which is made for an ulterior purpose, it can be exceptionally difficult for an employer to prove that.
Accordingly, we recommend that employers always seek professional advice before starting any dismissal process involving an employee who may have made a workplace complaint or inquiry. Our experience demonstrates that an ounce of cure is always worth a pound of prevention.