Sacked for accessing porn – unfair process

Cases

Sacked for accessing porn – unfair process

Pornography, safety risks and redundancy were the focus of recent unfair dismissal cases in the Fair Work Commission.

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Pornography, safety risks and redundancy were the focus of recent unfair dismissal cases in the Fair Work Commission.

'Pornography’ dismissal unfair


The FWC has ruled a dismissal was unfair because an employer failed to properly inform an employee he was being summarily dismissed for accessing pornography and soft porn sites.

The financial controller at a car dealership had been warned over accessing objectionable sites.

The employer later investigated more complaints and concluded the employee had again accessed inappropriate websites at work and had therefore breached the Policy and Procedures Manual.

The commission found there was a valid reason for dismissal, however the employer failed to adhere to procedural fairness.

Commissioner Williams noted:

“If [management] had provided Mr R with procedural fairness he would have advised him why he was considering dismissing him, given him a copy of the relevant internet history and explained it was the presence of the swimsuit website which [management] viewed as inappropriate use warranting dismissal and then allowed Mr R a period of time to review this and provide any explanation he had...

"If [management] had followed such a procedurally fair process and if Mr R had raised [an alleged] virus as a possible explanation then [management]  would have had the opportunity to investigate through the respondent’s IT staff whether there was any legitimacy to Mr R’s explanation or not.”

Mr R was never properly notified of the reason for which he was to be dismissed and was not given any real opportunity to respond to the reason for which he was dismissed.

The commission said "a different outcome may have occurred if this had taken place."

An order for compensation was issued requiring Mr R be paid $25,341 within 21 days.

R v Auto Classic (WA) Pty Ltd [2016] FWC 4954 (25 July 2016) 


Clause didn't relate to isolated redundancy


An agreement required additional consultation requirements to apply when collective redundancies occurred. However, a FWC full bench found this was not required in relation to an isolated redundancy.

Additional consultation requirements prescribed were enacted only when the employer “makes a definite decision to introduce major changes in production, program, organisation, structure or technology in relation to its enterprise”.

It followed that to determine whether consultation of this nature was required the commission must first determine whether the appellant’s redundancy was a “major change” within the meaning of the disputed clause.

The commission was guided by the most recent High Court authority, Amcor Ltd v. CFMEU. The full bench preferred the employer’s submission that the text of the agreement, read as a whole, led to the finding that the appellant’s redundancy did not enact the clause. 

The frequent referral to the plural “employees” rather than “employee” in the clause further indicated that the clause captures changes to the workplace that impacts upon a group of employees rather than an individual. 

T v Crown Melbourne Limited – FWCFB – 25/07/16 


ATO officer refused to perform new role


A FWC full bench has upheld an ATO appeal, finding an employee was justifiably dismissed when he refused to carry-out a newly assigned role. The employee had complained he was not sufficiently trained to do that role and a dispute resolution was pending.

Commissioner Ryan initially found there was no valid reason for termination of employment because the decision to dismiss was made before the dispute resolution process relating to Mr S's duties was resolved.

The full bench said it was arguable Parmalat Pty Ltd v. T and other authorities may have misled the commissioner: the commissioner had conflated the test of whether or not there was a valid reason for dismissal with the overall test of whether or not the dismissal was harsh, unjust or unreasonable.

The employee did not have a sound reason for refusing to follow the direction. There were no WHS issues in play.

Commonwealth of Australia (Australian Taxation Office) v S [2016] FWCFB 4185 (19 July 2016) 


Refusal to communicate amounted to resignation


The FWC (Richards SDP) found an employee who refused to talk to his employer about an altercation – and absented himself from work – amounted to a resignation.

The employer telephoned the employee six times, and texted him on two further occasions (all of which went without reply).

The employee presented for work a few days later, but did so without explanation, apology or any other effort to resolve the breach. The employer had by then accepted the employee's repudiatory breach.

T v AGAS National [2016] FWC 3435 (13 June 2016) 


Potential safety risk was real – dismissal justified


The FWC decided that abandoning a loaded crane in an unsafe position was sufficient reason for dismissing an employee.

The elements of procedural fairness had been met, including informing the employee of the allegations.

The commission commented:

"The procedure adopted by OneSteel to investigate what happened on Friday 11 December 2015 and decide on the appropriate disciplinary action for those involved was appropriate and fair. The initial meetings on Monday 14 December 2015 formed part of OneSteel’s investigation... [he] had the opportunity to have a support person present... The open nature of some of the questions asked in those meetings was appropriate for that investigatory stage of the process.

"The NUW insisted on written allegations being put to Mr M... OneSteel acceded to that request."

M v OneSteel Trading Pty Ltd [2016] FWC 2617 (2 May 2016) 

See also: Misconduct definitions

 

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