Inappropriate behaviour not serious misconduct

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Inappropriate behaviour not serious misconduct

The Fair Work Commission has ruled that inappropriate conduct and light-hearted jokes did not warrant summary dismissal of a manager.

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The Fair Work Commission has ruled that inappropriate conduct and light-hearted jokes did not warrant summary dismissal of a manager.

Central to this finding was the lack of credibility of one employee, who unfairly characterised her supervisor’s behaviour. 

Background 

 
Christopher Ward commenced work with Reece Australia in June 2010 and was eventually promoted to branch manager.
 
He was summarily dismissed on 11 May 2018 following allegations of serious misconduct.

The five allegations were:
  1. An employee, Ms Valavanis, characterised Mr Ward as insensitive to a Muslim customer’s religious beliefs after he criticised the store televising Commonwealth Games female gymnastics, saying their attire was inappropriate and that women should be in the kitchen.  
  2. Mr Ward then said, “You should see what Gee [Mr Vural] says about you behind your back”, insinuating that another employee had made inappropriate comments about the customer.  
  3. When Ms Valavanis retold the story of an older Indian customer offering to take her out for a coffee, Mr Ward allegedly asked whether she refused because of the customer’s skin colour.  
  4. Ms Valavanis also said her probationary employment was threatened when she requested annual leave to attend a wedding a few days away. Mr Ward was initially hesitant and emphasised that the leave may influence the final decision about her ongoing employment.
  5. Mr Ward demanded another employee’s personal phone and deleted the Facebook App because he was concerned the employee was coming to work tired.   

Valid reason for dismissal


Senior deputy president Hamberger found Mr Ward was more credible than Ms Valavanis. While Mr Ward was thought to have tried to answer truthfully, including apologising for some behaviour, Ms Valavanis was said to present as self-serving and implausible with her characterisation of Mr Ward completely accepted by the employer.
 
Accordingly, the senior deputy president discounted some of her allegations as either unfounded or nonsensical.

He went through her allegations as follows:
  • It was reasonable to express annoyance for the short notice for leave, with sales staff usually requiring four weeks’ notice. Mr Ward never said he was going to sack Ms Valavanis and it was not reasonable to infer this, especially as he eventually allowed the leave. 
  • The allegation of discrimination against the Muslim customer was “equally puzzling”. It was not unreasonable (or racist) to challenge the customer’s sexist and discriminatory statements. 
  • Ms Valavanis’ version of events regarding the elderly Indian customer were not accepted. Senior deputy president Hamberger added that even if the interaction did occur as alleged, it would not be racist but a light-hearted, albeit poor-taste, joke attributing racism on her part. 
Regarding the fourth allegation, SDP Hamberger said that, although the remark was inappropriate, it was a light-hearted attempt to diffuse the situation and Mr Ward immediately apologised to Mr Vural.
 
The commission accepted that the phone incident was misconduct. This incident nevertheless stemmed from a misreading of Mr Ward's relationship with the employee and he was well-intentioned. As such, his actions were not serious misconduct.

Conclusions

 
While some of Mr Ward's behaviour was certainly inappropriate, it was not serious misconduct, the commission ruled. At worst, he mismanaged his employees and misjudged his professional relationships as friendships – both leadership issues not warranting dismissal. 
 
Mr Ward had not found work since and he had an eight-year employment history with no conduct warnings. With only a small discount for Mr Ward's misconduct, the commission awarded compensation of $32,000 plus super (based on a yearly $75,000 income).
 
The bottom line: An employer is not entitled to rely blindly on allegations of inappropriate behaviour. The commission will consider the broader context of any alleged misconduct, including perceived good intentions, and credibility issues may be relevant. 

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