Employers should be aware of three recent cases where employees were found to be unfairly dismissed in arguably surprising circumstances.
In Anderson v Thiess Pty Ltd  FWC 6568, Mr Anderson was summarily dismissed for sending a work email that was highly offensive to persons of the Muslim faith. Despite finding that the email was in clear breach of Thiess’ policies and had the potential to cause significant reputational damage to Thiess, the Fair Work Commission awarded Mr Anderson $28,000 in compensation on the basis that the dismissal was nonetheless harsh and unreasonable. The Commission found that:
- the dismissal was harsh because Mr Anderson was 65 years of age and would have difficulty obtaining other employment;
- the dismissal was unreasonable as Thiess relied too heavily on a previous verbal warning given to Mr Anderson for engaging in the same conduct; and
- Thiess did not give Mr Anderson sufficient time to accept that the contents of his emails were inappropriate in the Thiess work environment and to apologise during the show cause process.
In Camilleri v IBM Australia Limited  FWC 5894 , Mr Camilleri was dismissed following an internal audit that revealed he had made 141 improper expense claims for nights when he was not actually working away. The Fair Work Commission accepted that IBM had a valid reason to terminate Mr Camilleri’s employment but said that the dismissal was nonetheless unjust because there was an excessive delay between Mr Camilleri’s conduct and the dismissal and IBM failed to adequately consider Mr Camilleri’s 17 years of service and his offer to reimburse IBM for the expenses. The Commission ordered Mr Camilleri’s reinstatement and awarded him 50% of his lost remuneration.
In Dent v Halliburton Australia Pty Ltd  FWC 5692, Mr Dent was dismissed for breaching the company’s driving safety policy when he was speeding in a company vehicle and using his mobile phone while driving. Two Halliburton employees provided evidence that they witnessed Mr Dent talking on the phone and exceeding the speed limit of 5 km/h when he entered the company’s yard. At the time of the incident, Mr Dent was already subject to a first and final warning for driving while speaking on a mobile phone. The Fair Work Commission determined that there was insufficient evidence to conclude that Mr Dent was using his phone while driving, but accepted the speeding had occurred, which provided a valid reason for his dismissal. Despite the finding that the speeding conduct did occur, the Commission concluded that the dismissal was unfair because Mr Dent was not given sufficient notice of the disciplinary meeting, and therefore was denied a meaningful opportunity to respond to the allegations. Mr
Dent was awarded compensation equal to 11 weeks’ wages (less earnings from other work).
So, what message should employers take away from these cases? A good process is vital in reaching termination decisions. If you are unsure about what qualifies as a good process in any particular circumstances, please call us before acting!
This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – October 2014. Click here to download the full newsletter
Article written by Belinda Winter, Partner