Unfair Dismissals - What is acceptable?

Unfair or unjust dismissals whether under the Fair Work Act or previous legislation are not clear cut. Each case is usually considered on its merits, but reading through these examples, there are some common themes and issues.

Most relate to fairness, and following appropriate procedures under the provisions of the Fair Work Act. As an employer, it is worth getting advice before moving to serious disciplinary steps or dismissal as a "reality check" on the issues that are likely to arise, and how to manage and minimise the risks of claims. 


Porn saved to a computer drive:

In a case which an employee had saved pornographic images onto their computer, the AIRC found that termination of employment was unfair. the Commissioner found that the dismissal was harsh because it was disproportionate to the gravity of the misconduct, and termination had disproportionate consequences;

The Commissioner took into consideration circumstances that included:

  • the employee was found to have 115 pornographic images on their computer drive which had been deliberately saved by the employee (not just automatically recorded through the operation of the computer system when others sent them to the employee);
  • the employer had strong policies regarding inappropriate conduct, including accessing pornography through the employer's computer system;
  • a reminder at start up of the computer every day drew the employee's attention to the policy;
  • the employee was not fully frank with the investigator, although some of his answers may have arisen more from not understanding how the computer system worked rather than anything dishonest;
  • the employee had 25 years service for the company and while the Commissioner found that such a length of service may be of less relevance in misconduct than it is in other cases, but such a long period should still be taken into account, particularly where the misconduct was relatively isolated;
  • the employee said the material had been forwarded to him by a more senior employee, who had since left,
  • others accessing similar material had not had their employment terminated;
  • computer records verified the employee's statement that he had not accessed, forwarded or dealt with the images after initially receiving and saving them
  • the conduct had occurred some years before it came to light and was not continuing;
  • the employee was genuinely contrite and remorseful;
  • the Commissioner also took into account the employee's personal situation, including his need for costly medical treatment, and other financial commitments;

The Commissioner ordered reinstatement since the relationship of trust and confidence had not been irretrievably broken, but did not order any compensation for six months loss of pay between termination and reinstatement, because some penalty was reasonable in the circumstances.  


Tardiness and low level insubordination:

An employer terminated a retail cashier's employment for the following reasons:

  • the employee started late, or with only a minute to spare, on 16 occasions during six months (when cashiers were required to be ready for work in advance of the 9am store opening time in order to immediately be able to receive customers, and received a paid lunch break as compensation for the extra time required);
  • on two occasions his register was short of cash, raising concerns about his handling of cash;
  • he sometimes put up the "Next Cashier" sign to engage in lengthy personal mobile phone calls;
  • he refused to answer an incoming phone call as directed because it was "not yet 9am".

The employee's unfair dismissal claim succeeded because:

  • while his conduct would have been frustrating, the issues were small niggling issues, and did not provide a valid reason for dismissal;
  • there was no evidence that the cashier was responsible for a pattern of cash drawer shortages and two instances over six months did not prove inability to perform the necessary duties;
  • as the deteriorating relationship meant that it was unlikely that the employment would have continued longer than another three months, the employer was ordered to pay three months' pay as compensation, but it was discounted by 10% in recognition of the cashier's low end misconduct.


Termination for accessing the Internet at work:

An employee who had been clearly directed not to access the internet during work time failed in his unjust dismissal claim.

He argued that he had not infringed the direction because he had not gone beyond the first page of sites he had accessed (because the computer system did not allow him to go further).

Fair Work Australia rejected this argument as the direction was clear, and accessing the first page of websites infringed that direction, even if the infringement was not prolonged by accessing further pages. The employee’s claim was therefore dismissed. 


Termination for deliberate car damage harsh:

An airline directed pilots to travel from airport to accommodation by company car, rather than by taxi (which the pilots preferred) with the aim to save money.

However one pilot, annoyed with the decision took it out on the car by deliberately driving it at high revs in low gear for long periods, and also by driving the car with the handbrake on causing considerable damage to the car. He was then summarily dismissed.

The low gear and handbrake allegations were proved, but the employer could not prove allegations that the pilot had also scratched the car, shifted the gears down while someone else was driving and had thrown away a key tag.

While Fair Work Australia criticised the employee's actions as petulant, childish and inappropriate, and foolish and silly from a person in a responsible position and could see there was a valid reason for the termination. However they determined that his dismissal was harsh and he was therefore reinstated.  They took into account his 14 years of service, seniority, and the financial effects of his termination. He had already been forced to sell his house and to spend $32,000 to qualify to fly other aircraft, and he had a previous good record prior to the incident.

There was also another pilot who engaged in similar conduct but he was not dismissed.

The Commissioner commented that the pilot's conduct was not to be condoned in any way but in view of the consequences for him he believed reinstatement was appropriate. Some but not all entitlements were agreed to be paid for the period of the dismissal, including the pilot to be placed on a formal warning about his conduct. 

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