Don't jump to conclusions, be fair, and set clear expectations for your employees.

It's that time of year again. As 2016 draws to a close, "best of" lists of books, music and films start appearing. This round up is a little different; it's employees behaving badly in 2016 and the response of the Fair Work Commission to such behaviour. (Of course, as we will see, employers aren't always perfect either.)

A recurring theme in 2016 was the media breathlessly reporting that various types of misconduct by employees don't justify dismissal, implying the Commission condones such behaviour. As you will see, the position is often more nuanced and illustrates that unfair dismissal cases turn on the circumstances of the case and constitute a balancing act between a range of considerations.

Mind your language!

In one case, an employee was terminated for, among other things, calling another employee a "dirty gringo c***". The Commission observed:

"Community condemnation regarding abusive terms associated with race, colour, nationality or ethnicity is stronger now than it has been in the past and rightly so. It is no longer acceptable to defend a slur that is racially based with the explanation 'But I meant no offence' or 'My comment was misinterpreted'."

The expression was determined by the Commission to be offensive, degrading and a racial slur. The employee was also found by the Commission to have made a threat of violence when he used the expression, "I'll fix your little red wagon".

Even though the employee was 57 years old at the time of termination, well regarded by site management, recognised as a good worker and had an unblemished employment record, his conduct was found to be a very serious breach of the company's applicable policies and the Commission, following previous decisions in relation to racial abuse in employment, found that the dismissal was not unfair.

In another case, an employee called the Chief Executive Officer of the employer an "old c***". In this case, however, the Commissioner held that the dismissal was unfair. While it was found there was a valid reason for dismissal, the relevant exchange had occurred after an inappropriate response from the CEO to an inquiry by the employee about overtime payments.

There were also procedural deficiencies in the conduct of the dismissal. The employee was dismissed by a text message which stated:

"the old man here.

Do not come back tomorrow thanks"

In this regard, the Commission held:

"I do not accept that a text message is an appropriate mechanism to advise an employee of dismissal and the reasons for it. The purpose of such notification is to trigger other incidents of procedural fairness such as an opportunity to respond to a reason to dismiss based on capacity or conduct. An employee who is notified of a dismissal by text message and simultaneously informed that the dismissal is immediate, has not been notified of the reason for dismissal in the context of s.387(b) of the Act and the related provisions relevant to procedural fairness."

In another case, an employee was on a rostered day off. After he had been contacted by a colleague to address a work issue on that day, he rang that colleague and abused her using terms such as "don’t f****** call us ever" and, after some further discussion, ended that conversation with the colleague by yelling at her "you stupid c***".

The Commission found that this behaviour was not an aberration; rather, the employee had on a number of other occasions ridiculed this colleague in front of others and also insulted her.

The Commission held the dismissal was not unfair. The employer had a valid reason for dismissal, had notified the employee of the reason for dismissal and given the employee an opportunity to respond.

Drugs

In this case, an employee admitted smoking marijuana the evening before he was involved in a forklift accident with another employee. (It was found the employee was not at fault for the accident itself.)

As a result of a positive drug test, the employee had his employment terminated pursuant to the "zero tolerance" Drug and Alcohol Policy (D&A Policy) of the employer.

The employee argued he had been advised during induction training not to smoke marijuana within three to six hours before his shift, and asserted that the relevant consumption had occurred outside of this window.

After weighing up the conflicting evidence, the Commission found, on the balance of probabilities, that the employee consumed a significant amount of cannabis during the morning of the day of his shift. The Commission held that it was reasonable for the employer to have and enforce a "zero tolerance" D&A policy, the employee was afforded procedural fairness and while the situation facing the employee was "regrettable", the dismissal was not unfair.

Porn

In a case which became something of a media cause célèbre, an employee who accessed, downloaded and stored pornographic material on a mobile phone and laptop computer provided by the employer, and probably downloaded some of that material "walking the streets of Port Macquarie" was found to have been unfairly dismissed.

The Commission noted:

"Ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct. Unless the employee worked in the Sex Industry, it would be difficult to contemplate that the viewing, downloading and/or storage of pornographic material represented proper, work-related use of the employer's equipment. The use of employer-provided equipment for non-work-related purposes should be assessed carefully and in context. There are obvious differences between using an employer provided laptop computer to conduct, for example, personal internet banking, as opposed to accessing and downloading pornography. However, particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work." [emphasis added]

In this case, however, there was no applicable company policy and the processes for dealing with the dismissal were "abrupt" denying the employee opportunity to respond to the underlying reasons for the dismissal. As such, this particular dismissal was held to be unfair. This case was not, however, contrary to some media reports, a "green light" from the Commission for employees to download pornography on work devices.

Social media "terrorism"

One case combined two hot-button issues of 2016 ‒ social media and terrorism.

In this case, the employee, an airport baggage handler, shared on his Facebook account a post from the controversial Hizb ut-Tahrir organisation adding the words, "We all support ISIS". This was one of a number of posts about which the employer was concerned.

The employee explained that he was being sarcastic. The Commission found that it would have been prudent for the employer to spend more time investigating the assertions of the employee that he was actually opposed to ISIS, as well as the circumstances of the other posts of concern.

The Commission noted:

"A more thorough investigation including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made."

The dismissal was found to be unfair. The Commission did, however, observe:

"My finding, however, should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing. I expect that even if the ISIS post had been made within the 'Australia, The Last Castle' secret Facebook group, he would have been met with derision and likely reporting to authorities of his post."

Some tips for 2017 and beyond

Human nature being what it is, it's every bit as likely employers will be confronted with the same type of conduct issues in 2017 as they were this year. The cases above give rise to some lessons for employers:

  • Don't jump to conclusions. Keep an open mind. Always conduct an appropriate, thorough investigation that seeks to objectively determine the relevant facts.
  • Always afford procedural fairness, even if you think it's an open and shut case with the misconduct so apparently egregious the outcome should be a foregone conclusion.
  • Take into account the impact on the employee of a dismissal. This may mean a consideration of factors such as length of service, personal circumstances and capacity to secure alternative employment. The Commission will consider these factors in assessing harshness.
  • Policies are important in establishing behavioural expectations. They must be widely promulgated, in clear terms, consistently applied and reasonable. (For instance, a "zero tolerance" drug and alcohol policy may not be appropriate for all workplaces.)
  • Beware moral judgments. The Commission readily accepts that employees aren't expected to be perfect and that being something less than a paragon of moral virtue will not, of itself, justify dismissal.