How can it be that an employee who has engaged in misconduct warranting dismissal be successful on an unfair dismissal application.
KEY TAKE OUTS:
- You must follow the guidelines/policy & rules when it comes to dismissal.
- A failure to do so may result in a successful unfair dismissal claim.
- If you are going to dismiss an employee it is always best to get advice.
A fly in fly out female mineworker played a prank by placing a sex toy together with butter knives inside a male colleague’s hand luggage. When airport security opened the bag, she filmed it on her phone.
Whilst this was been investigated, she then appeared in a photo with two other female colleagues who had unbuttoned their uniform tops and bared the top their breasts whilst bending forward.
The employer a BHP subsidiary proceeded to summarily dismissal.
The employee lodged an unfair dismissal claim arguing that it was extremely disproportionate and that the employer had not applied the disciplinary policy consistently as the other employees in the photo were not dismissed.
What did the FWC say?
- That the employer did have a valid reason to dismiss as she had breached the company’s values of respect and integrity.
- That the selfie incident alone could have been dealt with by a written warning letter.
- That the employer failed to adhere to the BMA Guideline to Fair Play policy (“guidelines”) and was obligated to follow them.
- That although the employer had a valid reason to dismiss the employee the failure to follow the guidelines made the dismissal unfair.
What did the employee receive?
- Reinstatement of employment is the preferred but in this case the Commissioner thought it would be inappropriate because of loss of trust and confidence she therefore ordered the employer pay 10 weeks wages which was then reduced by 50% for misconduct.
What can employers learn?
You must follow the guidelines/policy & rules when it comes to dismissal. A failure to do so may result in a successful unfair dismissal claim.
If you are going to dismiss an employee it is always best to get advice.
ABOUT KARENA NICHOLLS:
Karena heads up the employment law division. I can assist you in times of uncertainty to protect your business or if you are an employee ensure you are not unfairly dismissed.
For further information please don’t hesitate to contact:
Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
