The Fair Work Commission has found that an employee who approached a competitor of his employer and divulged personal information about his current boss and the business was not unfairly dismissed.
In the case, the employer and the employee had already agreed in August 2015 that the employee’s employment would cease on 31 December 2015. With the permission and encouragement of the employer, the employee began seeking alternative employment.
Subsequently, the employee used his company email address to send an email to a competitor of the employer. Among other things, that email stated:
- That his boss had become “difficult and most unpleasant”;
- That his boss left his wife and kids and had an affair with the office manager; and
- The business had just lost one of its biggest accounts and his boss was ‘struggling’.
Initially, when the employer was alerted to the email, the employee denied sending it. The employer subsequently took action to investigate and then terminate the employee for serious misconduct. The employer gave evidence that the personal information was inaccurate and derogatory, not to mention inappropriate to share with a competitor. He also led evidence that giving information about the loss of an account was damaging to confidence in his business.
The Commission agreed that the dismissal in this instance was consistent with the Small Business Fair Dismissal Code, stating:
“This is not a case where passing comments of a critical nature are made about an employer to friends or family in private… This is a case where work email is used to communicate with another employer in the same industry. The employer had reasonable grounds for perceiving this to be slanderous and damaging to his business… the employer had reasonable grounds for concluding that it was serious misconduct”.
Lessons for Employers
This case is a clear example of where an employee might cross that line between misconduct and serious misconduct warranting termination without notice, particularly in relation to instances where negative comments are made in public about their employer.
Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.