The Fair Work Commission has ordered the reinstatement of an employee who engaged in misconduct, on the basis that the behaviour had been tolerated by the employer. However, the Commission refused to award lost remuneration, partly due to the employee’s misconduct.
An employee was summarily dismissed for failing to comply with billing practices and distributing a letter said to be deliberately offensive, a challenge to management’s authority and designed to embarrass and damage the employer. The employee filed an unfair dismissal application.
The Commission found the first allegation unsubstantiated as the employer’s billing guidelines did not clearly exclude the employee’s billing methodology. The second allegation was substantiated in part. The letter contained baseless personal attacks on the employee’s managers and its distribution to the entire department constituted misconduct (but not serious misconduct). This did not justify dismissal, however, as the employer had tolerated such communications in the past. The employee’s expertise and performance over 14 years was also significant to the finding. The Commission reinstated the employee but refused to order that the employer pay lost remuneration, in part to ensure the employee understood the significance of his misconduct.