The Fair Work Commission have again demonstrated the high threshold of conduct required to justify a termination for serious misconduct. In a recent case, an employer dismissed an employee for sharing a photo of a colleague’s employment contract with another employee. The employee (‘Applicant’) was ultimately dismissed without notice on the basis that his conduct amounted to serious misconduct. He subsequently made an unfair dismissal claim.
During the hearing, the FWC heard that the Applicant had raised concerns with his employer about his belief that a colleague, who he considered performed a similar role to him, was being paid a salary greater than his own.
It was accepted by both parties that the Applicant had taken a photo of the front page of his colleague’s contract and that he had then discussed that he had that photo with another employee. That other employee then subsequently received a copy of the photo and he alleged that photo was sent to him by the Applicant. The Applicant disputed that he sent the photo to the other employee, and suggested that it may have been sent from his phone by someone else.
The Commissioner determined on the balance of probabilities that the Applicant did send the photo to his colleague and that this conduct did constitute a valid reason for the dismissal. However, the Commissioner did not find that the conduct was so serious as to constitute serious misconduct. The Commissioner noted that the information in the photo was conveyed to a senior employee and was “in the context of some legitimate concerns about his position and pay”.
The Commissioner noted that it was also relevant that at the time of the termination the employee was on unpaid sick leave with a pending workers’ compensation claim, and so providing him with notice would not have had not resulted in additional payments for the employer.
Despite finding that the conduct did not amount to serious misconduct and that the dismissal was unfair, Commissioner Hampton declined to provide the Applicant any compensation as the Applicant had an accepted workers’ compensation claim and therefore would not have “suffered any relevant remuneration loss from his dismissal”.
Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner 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.