A Mine Grader Operator has been successful in being reinstated to his job, but the Fair Work Commission denied him compensation for the period in which he was without a job, stating that the employee must accept “a substantial degree of responsibility for the financial consequences of his dismissal”.
The employee was terminated following an early morning session of ‘banter and chat’, in which the employee made a number of “crude lude and sexist” remarks over the employer’s two way communications system. Evidence was led that in a 12.5 hour shift, the Employee spent some 110 minutes on a two way channel reserved for training, engaging in the banter.
At the hearing the Employer established that it had two valid reasons for the Employee’s dismissal. The first was the employee’s presence on the channel for 110 minutes and this, a serious breach of safety policy, in placing his and other employees’ safety at risk.
The second reason related to the nature of the comments made by the Employee, which included:
- A number of sexual references directed at colleagues
- References to the testicles of one his colleagues; and
- Some culturally insensitive references regarding religious beliefs.
Commissioner Saunders agreed that these comments were a substantial breach of policy and constituted a valid reason to dismiss the Employee.
Commissioner Saunders was also satisfied that the process in dismissing the employee was a fair process.
However, the Commissioner still determined that the dismissal was harsh. In making that decision, the Commissioner referred to:
- The Employee’s exemplary work record;
- That the gravity of the conduct didn’t necessarily warrant dismissal;
- The personal and economic consequences for the Employee and his family – and that he financially supported 3 of his 4 children;
- That the conduct was an isolated and temporary failure to uphold relevant standards;
- That there was a practice of misusing the relevant channel for banter;
- That the Employee was genuinely contrite for his actions.
The Employee was reinstated to his position despite objection by the Employer, but he was not awarded any compensation due to the misconduct engaged in.
All Employers need to be aware, in terminating an employee, that the Commission will assess the validity of any reason, but also the harshness of a termination in the circumstances. Great care particularly needs to be taken with process and all elements of a termination of employment.
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.