Dismissal of long-serving tram employee derailed

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Dismissal of long-serving tram employee derailed

A tram company employee who was accused of dishonesty and breaching confidentiality requirements has won his unfair dismissal case.

A man who had been employed by a tram company for almost 40 years has successfully claimed his dismissal was unfair.

He was accused of breaching confidentiality requirements and being dishonest in relation to investigations of complaints made against him. The Fair Work Commission found some of these allegations to be true, but on balance his dismissal was unfair.

Facts of case


Mark Moran had worked for a tram company for 39 years, and was a depot starter when dismissed at the age of 59.

The specific reasons for dismissing him were:
  • He deliberately and repeatedly breached a requirement that the investigation into his conduct be kept confidential.
  • He lied to and misled his supervisor about those breaches.
  • He recorded meetings he had with other employees and union representatives, which was a breach of trust in the employment relationship. (However, the employer did not become aware of this until after dismissing him.)
The reason for the investigation was that another employee made a complaint against him. The employer notified him that a complaint was made and asked him to sign a confidentiality agreement, but he refused to do so because the employer would not provide him with details of the complaint. He later learned the name of the driver who had made the complaint. 

An external consultant conducted the investigation. Mr Moran received details of eight allegations made against him. These related to contact towards another employee that can be summarised as bullying, ostracism, refusing to provide assistance, rude comments and making it harder for him to do his job. He contacted other employees to enquire whether the investigator had contacted them and whether they recalled the alleged incidents. When a manager asked him whether he had done that, he denied it. 

Mr Moran had two meetings with the investigator, and at the second one was told that a second employee had made a complaint about him. 

The investigation concluded that three of the 13 allegations against him were substantiated and another two partly substantiated. 

He was then informed of further allegations, this time relating to the investigation itself, namely lying to his manager, breaching confidentiality by discussing the investigation with co-workers, and victimising co-workers during it. The allegations were put to him as “questions requiring a response”, and that they amounted to serious misconduct and would be subject to disciplinary action if substantiated. At a further meeting, he denied those allegations, but was told he was summarily dismissed for serious misconduct.
 
Mr Moran appealed against his dismissal and a review found it to be harsh and unjust, and lacking procedural fairness. However, the employer then alleged that his conduct after being dismissed was inappropriate and intimidating and did not withdraw the dismissal.
 
The employer had prepared confidentiality agreements in relation to the investigation. They required that the investigation not be discussed with co-workers, but he had never signed them. The employer’s complaints procedures contained similar provisions. 
 
However, the parties disputed whether he was actually given the agreement to sign and what was said to him about confidentiality. The FWC concluded that he was not given a clear and unequivocal directive about confidentiality and what he could/could not do. Therefore, there was no binding obligation on him to maintain confidentiality. 
 
Mr Moran had kept notes of his various conversations with co-workers, managers and the investigator. The FWC found his evidence to be more credible overall. Any “breaches” in relation to confidentiality appeared to be enquiries to co-workers about what he may have said, to help him prepare his response to the allegations. They did not involve harassment or victimisation. Any dishonesty on his part was not serious enough to provide a valid reason for dismissal. 

By making recordings of conversations without telling the other people, he had breached surveillance device use legislation. This could be a valid reason for dismissal, but in this case the employer was unaware of it at the time of dismissing him, so could not claim it was a valid reason to dismiss him.

Decision


On balance, the dismissal was unfair. The FWC gave the following reasons:
  • Because the confidentiality documents were not binding on Mr Moran, he did not breach confidentiality requirements. He was not specifically warned not to talk to other employees as part of preparing to respond to the allegations against him.
  • Any dishonesty on his part, or saying “I do not recall”, was not serious enough to provide a valid reason for dismissal. 
  • He did not receive a proper opportunity to respond to the allegations of confidentiality breaches.
  • His recordings meant that he disclosed the content of the conversations, it was not the employer or the investigation that did so. Such disclosure was inconsistent with a claim that he breached confidentiality.
  • He had been employed almost 40 years, had a good previous record, and would have found it hard to obtain other employment. 
Because only one factor (dishonesty) weighed in the employer’s favour, the dismissal was harsh and unfair in the circumstances. The FWC directed the parties to make submissions regarding a remedy.

The bottom line: In this case, the employee’s evidence was more credible than the employer’s, partly because he had documented or recorded his conversations with others. When requiring employees to comply with organisation policies (such as confidentiality), recommended practice is to obtain their signed agreement to do so. In this case, the policy was not binding on the employee because of that oversight. It is also essential to ensure that the employee clearly understands the policy, and any consequences for non-compliance.

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