Commissioner Roberts described the wife of the Applicant in Lindsay Wade v Murray Security Services as “an aggressive serial pest” to the Respondent security company (MSS) but did not allow her actions to be imputed onto her husband for the purpose of terminating his employment.
Mr Wade was summarily dismissed by the Principal of MSS, Mr G Lawrence on 19 April 2010 following the receipt of an abusive phone call made by Mr Wade’s wife. Mr Wade had been employed by MSS as a security guard since May 2008 and was initially held in high regard by his employer. On or about June 2009, Mr Lawrence observed that Mr Wade “became more difficult to manage” as he came under financial stress.
It was at this time that Mr Lawrence began to receive regular harassing phone calls from Mr Wade’s wife, in which she accused him of “not looking after Lindsay” and disputed her husband’s wages and hours of work. In the period from June 2009 to April 2010 Mr Lawrence claimed to have received several complaints from clients concerning Mr Wade’s conduct and issued him with three verbal warnings, of which the latest was 6 April 2010. Further, Mr Wade had been ignoring company policy by driving his own car for work purposes since April 2009. The car provided by MSS had broken down, and Mr Wade refused to drive the relief vehicle, claiming that it hurt his back.
In April 2010, Mrs Wade forwarded a bill of $117 to Mr Lawrence for use of the private vehicle. Mr Lawrence refused to pay, as he had already paid Mr Wade $50 with respect to the vehicle along with additional fuel expenses. Mrs Wade then rang Mr Lawrence and threatened him about paying the bill during a phone conversation which he believed Mr Wade condoned. This was, as Mr Lawrence put it, “the straw that broke the camel’s back” which resulted in the summary dismissal of Mr Wade from MSS.
Mr Lawrence made it clear at the Fair Work Australia (FWA) hearing that this phone call was the final reason why Mr Wade was terminated, and that Mr Wade had adhered to all verbal warnings that had been given in respect of his misconduct. Commissioner Roberts of FWA found that since it could not be proven that Mr Wade was a party to his wife’s actions, and that all instances of his misconduct had been effectively addressed by verbal warnings, there were no grounds on which he could be justifiably dismissed on the basis of serious misconduct.
There was no evidence of malice in the summary dismissal by Mr Lawrence, nor was there any ill feeling between him and Mr Wade at the hearing. FWA found his actions were of understandable frustration in light of the harassment he had faced from Mrs Wade, but were nevertheless illegal under the unfair dismissal provisions of the Fair Work Act 2009 (Cth). As reinstatement was not appropriate, Mr Wade was awarded compensation which equated to four weeks’ wages.
This decision by FWA demonstrates that employees can only be justifiably dismissed on the basis of misconduct where the misconduct involved is directly and explicitly referrable to the employee. The employer in this case was clearly subjected to unreasonable harassment by the wife of an employee over a sustained period, however this could not be imputed to the misconduct of the employee.