Two recent Fair Work Commission decisions indicate that an employee may be validly dismissed for encouraging media criticism of an employer

An employee will typically owe contractual duties to his or her employer to act in good faith and in the employer’s best interests.

However, the Fair Work Act 2009 (Cth) also protects the right of employees to make complaints about their employment.

So what happens when an employee encourages a third party to raise the employee’s concerns about the employer’s activities, and those concerns may damage the employer’s reputation?

The Fair Work Commission was required to consider this issue in two recent unfair dismissal claims.

The Applicant v The Respondent [2014] FWC 3189

The employee, a cleaner in an aged care facility, had worked for her employer since 2009. However, in February 2014 she was summarily dismissed for serious misconduct after encouraging a resident at the aged care facility to make a complaint to A Current Affair.

The employee was apparently concerned that the facility was not ensuring residents had sufficient water. However, she did not raise the complaint internally using the employer’s staff complaint policies. 

After a two-day hearing, the Commission held that the employee’s actions in encouraging the resident to complain about the employer to the media amounted to deliberate and wilful misconduct.

The Commission noted that the employee had also attended an annual staff meeting at which the employer highlighted its concerns about the damage that can be caused by adverse media exposure. The Commission therefore concluded that the employee understood her actions may damage the employer’s reputation.

The Commission therefore concluded the employee’s conduct warranted dismissal. As the employer’s process for dismissing the employee was procedurally fair, the Commission accordingly dismissed the employee’s unfair dismissal claim.

Howie v The Royal Society for the Prevention of Cruelty to Animals T/A RSPCA-ACT [2014] FWC 2771

In the second case, the employee, Mr Howie, was a senior manager of the RSPCA ACT who was dismissed for leaking information to the employee’s union and a journalist. The information included various confidential documents belonging to RSPCA, together with an allegation that the Chief Executive Officer had made a decision to pour concrete down RSPCA-owned rabbit warrens.

Mr Howie initially raised his complaints internally, but then decided to raise his complaints with his union, and then the media, while RSPCA was still investigating the complaints. Mr Howie claimed he had no choice but to escalate his complaints following the RSPCA’s lack of action, and accordingly asserted that his dismissal was unfair.

The Commission accepted evidence that the RSPCA’s investigation of the complaints was reasonable, and that in particular Mr Howie’s decision to single out the Chief Executive Officer for a decision made by the RSPCA’s workplace health and safety committee, following lengthy deliberations, was “reprehensible”.

The Commission accepted that Mr Howie’s actions were a deliberate attempt to undermine the RSPCA’s Chief Executive Officer, and were motivated by negative personal feelings which Mr Howie had towards the Chief Executive Officer.

The Commission concluded that Mr Howie had betrayed the trust of his employer by disclosing confidential information and damaging the RSPCA’s reputation. Accordingly, after also accepting that Mr Howie’s dismissal was procedurally fair, the Commission rejected Mr Howie’s unfair dismissal claim.

Lessons for employers

The Commission’s decisions confirm that an employer can dismiss an employee who deliberately seeks to damage the employer’s reputation. Such actions by an employee irreparably damage the employer’s trust and confidence in the employee, and can warrant summary dismissal.

However, an employer deciding whether to dismiss an employee in these circumstances must ensure that:

  • the employee is provided with other opportunities to address their concerns (for example by the employer having a documented complaints procedure);
  • the employer investigates any complaints raised by an employee in a fair, reasonable and timely manner; and
  • the employee is afforded procedural fairness before any final decisions are made.

An employer must also be careful to avoid taking adverse action against an employee because the employee has made a complaint or inquiry about his or her employment. Otherwise, the employer may be exposed to a general protections claim from the employee. If successful, a general protections claim can lead to the employee being awarded compensation, such as for loss of income, together with penalties as high as $51,000 for a corporation.

Accordingly, we recommend that employers always take appropriate advice before starting any performance-management or dismissal process.