According to the Fair Work Commission’s (FWC) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC. In the 2017-2018 reporting period, more than 13,000 unfair dismissal applications were lodged by employees across Australia.
Clearly, unfair dismissal continues to be one of the main areas of dispute between employers and employees.
The Fair Work Act 2009 (Cth) sets out the matters that must be considered by the FWC when determining whether a dismissal was in fact unfair. One of the most important matters for consideration is whether there was a “valid reason” for the employee’s dismissal.
Over the years, case law has established that a valid reason must be sound, defensible and well founded, and should not be capricious, fanciful, spiteful or prejudiced.
It is often on this question of whether there was a valid reason for dismissal that employers and employees clash. Employers may view an employee’s conduct, performance or safety breaches as extremely serious, but the employee views those same things as minor infractions not warranting any attention, let alone the kind that results in them losing their job.
Two recent cases from the FWC highlight this kind of discrepancy in the characterisation of events.
A “cool as hell” photograph idea
In this case, an employee located at a mine site was dismissed after he posed for a photo standing on top of a piece of heavy machinery that was parked, but still running. In the photo (that was posted on Facebook) the employee was pictured standing on the machine with one foot on top of the cab while holding a large metal roof bolt in his right hand.
The employer considered the employee’s actions a serious breach of its safety policies and rules, as well as conduct that was capable of causing harm to the employer’s reputation and business.
Upon discovering the photo, the employer informed the employee of the seriousness with which it was treating his conduct and asked him to show cause as to why his employment should not be terminated.
The employee responded with a somewhat sarcastic email in which he said that he posed for the photo because he thought “it’d just look cool as hell”.
The employer subsequently terminated his employment.
In determining the employee’s unfair dismissal claim, the FWC considered all the relevant policies and procedures of the employer related to safety, including those concerning the isolation of machinery. The FWC also considered recent developments at the mine site where the main operator of the site had contacted the employer about a spate of injuries, insisting that the employer do more to prevent safety incidents.
The FWC found the employer had a range of safety policies, rules and procedures in place and the employee had been trained appropriately in these. On this basis, he should have known that climbing on top of a piece of heavy machinery that was still running was a breach of the employer’s safety policies, procedures and rules.
Further, the FWC accepted there were valid reasons for dismissal in that the employee’s actions were not only risky in terms of safety, but also risked the employer’s reputation and business interests because one of its biggest partners had recently warned it about its safety record.
At the hearing of the matter, the employee accepted that his conduct was out of line and was a silly thing to do but he did not accept that he could have fallen off the machine or that his conduct amounted to a breach of the employer’s policies or procedures. The FWC commented: “These refusals, together with the contents of his response to the ‘show cause’ request demonstrate [the employee’s] lack of genuine remorse and acceptance of accountability for his conduct.”
The FWC found that there was nothing unfair about the employee’s dismissal and his application was dismissed.
“If it’s a short distance, please walk”
In this case, a bus driver was dismissed following an incident where he stopped driving after becoming rattled, told passengers they should walk and disparaged his employer and manager to passengers.
The bus driver claimed he was approaching a roundabout and was trying to turn when his seatbelt suddenly locked, hurting his neck and shoulders. He said he was then forced to brake to avoid hitting an electrical pole, after which he started to feel stressed and began to shake.
He called the employer’s operations centre by radio and requested that he be relieved from driving. He told the operations centre that he would continue to drive to a nearby station where he wanted to be replaced.
The bus was fitted with CCTV that recorded both audio and video. This footage was provided to the FWC as evidence of the incident.
The CCTV showed that while waiting for a response from the operations centre, the bus driver complained to two passengers about his treatment by the employer, and his manager in particular. He said that he had reported safety issues to the employer who accused him of “bullshiting”. He also told passengers that his manager was “abusing” him.
He then failed to drive to the station as he had said that he would and told passengers (including school children) “if it’s a short distance, please walk”.
The employer sent a replacement bus and driver along with an additional driver to drive the bus driver and his bus back to the depot.
The bus driver refused to be driven back to the depot and insisted on being on his own and walking.
Some days later, the employer showed the CCTV footage of the incident to the bus driver and asked him to respond to its concerns and provide reasons as to why his employment should not be terminated. The bus driver claimed that the seatbelt was faulty and that his conduct was out of character and was the result of stress because his manager had issued him with an envelope in the lunch room earlier that day.
Within the context of having issued previous warnings for unacceptable conduct to the bus driver, the employer terminated his employment. Its reasons were that:
- After radioing for a replacement, the bus driver had not continued to drive the bus to a nearby station as he said he would, resulting in passengers being stranded and told to walk;
- The bus driver made allegations to passengers about the employer failing to address safety issues;
- The bus driver made disparaging comments to passengers about his manager; and
- The bus driver refused to return to the depot after being relieved from driving.
In determining whether the dismissal was unfair, the FWC considered whether the employer had a valid reason for the dismissal. The CCTV footage of the incident was particularly relevant.
The FWC found CCTV did not support the bus driver’s version of events about his seatbelt or braking to miss a pole. However, it did support the employer’s position that the bus driver had made inappropriate remarks to passengers about the employer and his manager, and he had told passengers to walk.
The bus driver claimed that his reaction to events on the day in question should be viewed in the context of his manager handing him an envelope earlier in the day which contained a record of a meeting about a late running service he was responsible for. He argued that it was inappropriate for his manager to hand him the envelope and it caused him stress which led to the incident with the bus.
The FWC rejected this argument and held that there was nothing untoward about the manager’s conduct. The FWC also found the bus driver’s complaints about safety were unfounded.
Ultimately, the FWC held that the incident occurred as described by the employer, was serious in nature and amounted to a valid reason for dismissal. The bus driver’s application was, therefore, dismissed.
Lesson for employers
Employers are entitled to expect high standards of conduct from their employees. This includes expecting that employees will not act in a manner that negatively impacts on the reputation of the employer.
Where an employee engages in inappropriate conduct, an employer is within its rights to treat that conduct as serious in nature, even if the employee considers it trivial or not their fault.
These cases demonstrate that, even if an employee doesn’t think their conduct is grave enough to warrant dismissal, the FWC will treat serious matters seriously and valid reasons as valid, despite an employee’s characterisation to the contrary.
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This post first appeared on Workplace Law and was republished with permission.