Two recent Fair Work Commission cases provide important lessons for employers on legally acceptable grounds for summary dismissal of employees.
Foul language case
In the first case the employee was a Darwin recruiter and the employer was labour hire firm Celotti Workforce.
The employee had been involved in various activities involving alleged misconduct including statements made during a Microsoft Teams virtual meeting. Among them she called the employer’s general manager (who was in Brisbane) a “wanker”, a “fucking misogynist” and a “disgusting cunt”.
When the general manager phoned the employee to tell her she was being dismissed due to serious concerns about her conduct, she got angry and admitted to the Fair Work Commission loudly telling him “this is a cunt act”. She was dismissed.
Before the Fair Work Commission the employee was successful. She obtained “four weeks’ pay in lieu of notice (after deduction of one week’s pay due to misconduct), making for a total compensation order of $6,153”. The takeaway is that generally offensive language is not a valid basis for dismissal from employment.
IP theft plans case
The second case was decided under the Small Business Fair Dismissal Code by the Fair Work Commission against a small business (ie employing less than 15 employees). It is the case of Shaleen Wharton v Regional Development Australia (U2021/5944).
Regional Development Australia describes itself on its website as delivering “the Australian Small Business Advisory (ASBAS) Digital Solutions program across most of Queensland”.
On the facts of that case the evidence of a plan to steal IP, and not the actual stealing taking place, was sufficient for dismissal of the employee. This case is instructive for many reasons including those below.
- The employer conducted an investigation. Usefully this led to point 2 below, a “show cause” type action.
- There was a meeting held between the employing company representatives and the employee at which the investigation results were indicated. An auditory record of the meeting was made, no doubt with the consent of all involved. Usefully for the employer the meeting and record created evidence used in its case to win over the Commission.
- As an outcome of the meeting, the employer provided the employee with an opportunity to submit evidence in response. (This is a common feature of English law, ie providing parties with the opportunity to put their case.) The employee provided no evidence in response.
- Only after the above prior steps was the employee dismissed.
- Arguably most usefully, the employee had signed an update to her employment agreement acknowledging IP ownership by the employer. The Commission found this contained “express and implied duties owed to the Respondent [ie employer] in her employment contract” and also “the duty under the Code of Conduct to be open, honest, and accountable and to act in good faith”.
- Putting her head under the guillotine, there was email evidence that the employee had in writing claimed the IP owner was in effect not the employer.
- To balance power between parties the Fair Work Commission does not ordinarily permit legal representation of the parties. That was the case too in this matter, the Commission did not permit the employee to use her hired barrister.
Our visualisation for employment agreements is provided in this post Employment agreements made simple and useful. Below is a peek at its first half.
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