Award of 10 days pay to sex offender ‘not common sense’

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Award of 10 days pay to sex offender ‘not common sense’

Opposition IR spokesman Eric Abetz has called on the Federal Government to appeal against an FWA decision which ordered Uncle Tobys to pay 10 days wages to a man dismissed because of convictions for harassment, stalking and possession of child pornography.

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Opposition IR spokesman, Eric Abetz, has called on the Federal Government to appeal against an FWA decision which ordered Uncle Tobys to pay 10 days wages to a man dismissed because of convictions for harassment, stalking, and possession of child pornography.
 
The offences were committed elsewhere, but union delegates had also complained to management of the man harassing and stalking women in the workplace.
 
However Senior Deputy President Lea Drake, despite finding Uncle Tobys had a valid reason for termination, determined that the worker’s dismissal had been ‘harsh, unjust and unreasonable’ because Uncle Tobys had failed to provide him an opportunity to consider and respond to concerns regarding his continued employment.
 
Now in jail
 
The worker was dismissed while appealing against his convictions, but the appeal failed and he is now in jail.
 
Abetz said the ‘outrageous decision’ by Fair Work Australia to award a payout to a man convicted of sex offences is potentially one against which IR Minister Simon Crean and Labor should consider launching an appeal.
 
‘No common sense’
 
‘There is no common sense in this decision which sends the wrong message to small business owners,’ he said.
 
‘This decision by FWA SDP Lea Drake implies that under Labor’s new rules small business owners will now be forced to pay a dismissal fee if faced with similar circumstances.
 
‘No doubt Nestlé [which owns Uncle Tobys] will be able to absorb the costs ordered by FWA; however this is no comfort to small business owners who would find it difficult to meet similar costs.’
 
In effect SDP Drake found that where employees’ criminal convictions are genuinely at odds with an employer’s obligation to maintain a safe workplace, their employment can justifiably be terminated.
 
Reasonable opportunity to respond
 
However she said the employee must first be provided with a reasonable opportunity to respond to the employer’s grounds for concern.
 
The worker, previously employed at Uncle Tobys Wahgunyah worksite in Victoria as a casual, claimed his security access card was deactivated in June 2009 and his name subsequently removed from Uncle Tobys' employee database in July 2009.
 
This happened because the company had learnt that he’d been convicted in mid April 2009 of criminal charges which included harassment, stalking, and possession of child pornography.
 
External matter
 
The man contended these actions amounted to termination of employment, and claimed unfair dismissal on the grounds that he had a history of ‘good conduct’ with the company — and his convictions, which were being appealed at the time of his dismissal, were an external matter that didn’t affect his employment.
 
Uncle Tobys contended that it had continued to offer the worker employment after it became aware of his convictions, but that it had deactivated his security access card because of concerns for the health and safety of other employees.
 
NUW union delegates had alerted Uncle Tobys in March 2009 to complaints about the worker harassing and stalking women in the workplace.
 
Convictions had implications for female employees
 
SDP Drake determined that Uncle Tobys had a valid reason to terminate the worker’s employment, because his convictions, which related to conduct of a sexual nature towards females, had implications for the Wahgunyah worksite’s ‘significant female employment base’.
 
In ruling this, she gave weight to the ‘gender balance of the workplace’, the worker’s established ‘lack of good character’ arising from his convictions and Uncle Tobys’ ‘obligations to provide a safe workplace for its employees as far as it is able to do so’.
 
No opportunity to defend employment
 
Despite finding a valid reason for termination, SDP Drake determined that the worker’s dismissal had been ‘harsh, unjust and unreasonable’ because Uncle Tobys had failed to provide him an opportunity to consider and respond to concerns regarding his continued employment.
 
‘The evidence of the Shift Line Managers was that Mr Wilson [worker] was being offered work. The fact is that Uncle Tobys’ management were prevaricating …
 
‘No-one sought to discuss the issues with Mr Wilson. Uncle Tobys decided to suspend Mr Wilson’s access pass and subsequently they removed him from their casual rostering database. This ensured … he would be offered no more work …
 
‘He was not provided with any opportunity to make submissions as to his guilt or innocence, as to what should flow from the fact of his trial in relation to these matters or, subject to his appeal rights, any conviction that might eventually follow. No matters in mitigation were considered. There was no opportunity provided.
 
'I have concluded that Uncle Tobys were hoping Mr Wilson would not be offered work until he went to gaol and that that would take care of the problem...’
 
‘Procedural fairness free zone’
 
SDP Drake commented that Uncle Tobys had been a ‘procedural fairness free zone’ in relation to the worker and it would have been appropriate and fair for Uncle Tobys to have:
  • firstly, provided the worker with an opportunity to respond to the newspaper articles regarding his conviction and to put forward any other mitigating factors, even if it was ultimately unlikely to be persuaded;
  • secondly, if it was not persuaded by the worker’s response, suspended (but not terminated) his employment because he had lodged an appeal from his convictions before his termination, which meant, as a matter of law, that no convictions had been recorded;
  • thirdly, terminated the worker’s employment only once his convictions were confirmed on appeal.
SDP Drake noted that since she had reserved her decision, the worker had been incarcerated because the appeals against his criminal convictions had been unsuccessful.
 
Delayed and ‘equivocal’ actions
 
SDP Drake was also critical of the management actions taken by Uncle Tobys to protect its workers' safety, including the ‘significant unexplained delay’ in actions taken following the complaints made by the NUW and the news of the worker’s convictions in April 2009 and the nature of the action taken.
 
‘Mr Wilson’s [worker’s] convictions occurred in April and were reported in the press in April. Two National Union of Workers' (NUW) officials met with management regarding Mr Wilson’s conduct towards female employees in March … Despite these events nothing was done to deal with Mr Wilson until June. Even then the action [the deactivation of security access card] taken was equivocal.
 
‘In relation to the complaints made by the NUW it would have been possible, as well as generous, fair and reasonable, to issue a notice identifying the type of conduct complained of as misconduct; to outline the consequences of such conduct; to encourage any employee affected by such conduct to come forward; to provide information sessions as to the type of conduct identified as misconduct; to outline penalties which might flow from such misconduct; to alert supervisors to the likelihood of such misconduct and their obligation to prevent it; and importantly, to offer counselling to any employee who recognised their own conduct as such possible misconduct, thereby allowing them the opportunity to discuss their conduct and be counselled.
 
‘In the end, because the NUW did not identify the complainants, Uncle Tobys did none of these things. This was not good enough either for the women affected or for any employee, including Mr Wilson, who may have engaged in conduct outside the acceptable standards.’
 
Payment ordered
 
SDP Drake determined that the worker should have been allowed, at most, four weeks to present his arguments and that after this time, Uncle Tobys would have been entitled to suspend, and then as events have developed, to have terminated his employment.
 
Having examined the regularity of the work that would have been offered to the worker over the course of four weeks, SDP Drake ordered Uncle Tobys to pay the worker ten days salary.
 
 
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