Is termination of employment always justified in the face of misconduct by an employee? Not always…and the issues were recently examined by the Fair Work Commission (“FWC”) after an employee who had engaged in misconduct by encouraging a colleague to “take a sickie” was awarded around $65,000 in compensation. You can read the case here.
Background
The employee was employed by a global energy company and worked on Varanus Island. Protected industrial action (a strike) was scheduled to occur on Varanus Island and the employee found out that one of his colleagues would be working on the day of the strike.
The employee sent a text message to his colleague which said, “are you seriously considering going to VI during protected action. Support the boys and take a sickie”. The colleague claimed that the text message caused him to feel intimidated and pressured to participate in the strike. As a result, he called in sick the following day.
Prior to the strike, the employer reminded all employees of behavioural expectations while taking protected industrial action. One of these expectations required that employees could not “threaten, intimidate or coerce” another person to participate (or not participate) in a strike. The employer also had a Code of Conduct which stated that their vision of the workplace was one which was “free from harassment, discrimination and bullying”.
After becoming aware of the text message, the employer investigated the allegations and the employee was dismissed as a result of the findings. The employee filed an unfair dismissal claim in the FWC.
The FWC’s decision
The FWC found that:
the employee’s actions amounted to misconduct because he had failed to comply with the employer’s Code of Conduct;
it was reasonable for the colleague to feel intimidated and call in sick as a result of the employee’s text message; and
the employee was afforded procedural fairness.
Accordingly, the FWC found that the dismissal was not unjust or unfair. However, despite these findings, the FWC found that the employee’s dismissal was harsh because the termination of the employee’s employment was not proportionate to the conduct in which the employee had engaged. It was not proportionate given the employee’s length of service (which was just shy of 20 years) and his clean record during his employment (that is, he had never had misconduct or performance issues prior to this incident).
While the FWC found that reinstatement would be inappropriate, it found that a payment of compensation was appropriate.
Managing workplace misconduct
Employers must consider carefully how they respond to incidents of misconduct in the workplace. An employer’s response must always be reasonable and proportionate to the seriousness of the misconduct involved. All of the relevant circumstances should be considered, including circumstances specific to an employee such as their length of service and any mitigating factors. “Getting it right” is important to minimise the risk of any disciplinary action being challenged or overturned.
