Sacked: visit from gun-toting friend misfires

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Sacked: visit from gun-toting friend misfires

An IT worker who allowed a friend into his employer’s carpark, where she then produced a rifle, did not engage in conduct justifying summary dismissal. However, his actions, including his conduct during the investigation, did justify dismissal with notice.

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An IT worker who allowed a friend into his employer’s carpark, where she then produced a rifle, did not engage in conduct justifying summary dismissal. However, his actions, including his conduct during the investigation, did justify dismissal with notice. 

[Full text of this case: W v Goodyear Australia Pty Limited [2016] FWC 1991 (8 April 2016)

The Fair Work Commission received an application for unfair dismissal remedy from Mr W. He was sacked by Goodyear Australia in August 2015, following 12 years of employment with the company.

At the time of his dismissal, Mr W was working at Goodyear’s offices in Parramatta, Sydney where he managed the IT functions of an entire business division. He was summarily dismissed for misconduct arising from an incident involving a firearm at the employer’s premises on 10 July 2015. 

Background

 
Outside of his employment with Goodyear, Mr W was an experienced and internationally renowned competitive target shooter. In this role, he was a mentor and tutor to Ms K, another competitive target shooter who frequently sought his advice and assistance in matters relating to the sport. Ms K was not employed by Goodyear.
 
Ms K arranged to meet Mr W for coffee during his lunchbreak on 10 July 2015. The reason was that she required guidance on an accessory she had purchased for her rifle. When Ms K rang Mr W to tell him she could not find anywhere to park, he said he would use his security pass to let her into the carpark of the building where Goodyear’s offices were located. 
 
Once Ms K had parked there, she and Mr W spent a few minutes talking near her car. When Mr W asked to see the accessory Ms K had purchased for her rifle, she opened the boot of her car and removed a firearm from a carry bag.  
 
They were seen with the rifle in the carpark by a member of the public who reported the sighting to the police. Two minutes later, police attended the carpark where they encountered Mr W and Ms K with the unloaded firearm. 

Unlike Ms K, Mr W was not charged with an offence by police. However, he was suspended on full pay while Goodyear undertook an investigation into his involvement the incident.  

When Mr W returned from a period of pre-approved leave in August 2015, he was required to attend a disciplinary meeting, the outcome of which was the summary termination of his employment due to serious misconduct.

Specifically, Goodyear viewed Mr W’s involvement in the incident as a breach of clear policies prohibiting weapons on its property, designed to protect its reputation and ensure a safe and secure workplace. It also concluded Mr W displayed no insight into the seriousness of the incident with the result being that management were unable to have confidence and trust in his judgment into the future.

Notice was required


According to Fair Work Commissioner Ian Cambridge, two fundamental propositions underpinned the employer’s finding of serious misconduct. The first was that Mr W allowed Ms K into the carpark knowing that a firearm would be present. While the second, alternative proposition afforded Mr W the benefit of the doubt, in that it assumed he had no prior knowledge a firearm would be present, Mr W stood accused of ‘deliberate inaction’ when Ms K produced the firearm.  

Mr W denied any wrongdoing, arguing he had no foreknowledge Ms K would be carrying a firearm, that he reproached her when she produced the firearm, and urged her to put the firearm away and leave the carpark as soon as possible.

However, in notes taken by the employer during an interview with Mr W following the incident, he was quoted as saying he did not immediately freak out when Ms K produced the rifle; instead, he became curious about the rifle’s new accessory and minutes elapsed during which the two examined the firearm.

Commissioner Cambridge determined that while Goodyear did not have a valid reason to summarily dismiss Mr W, and thus his dismissal was unfair, it did have a valid reason to dismiss him with notice.

He explained:
 
"The employer’s fundamental reason to dismiss [Mr W] was the alleged misconduct… which involved him either, permitting Ms [K] to enter the car park in the knowledge that she had the firearm in her car, or alternatively, allowing her entry to the car park without knowledge of the firearm, but then subsequently not acting with reasonable and timely concern for the circumstances. Neither of these formulations… can be held to have involved a wilful and deliberate attack upon the employment relationship, such as would be necessary to justify a dismissal without notice, as opposed to dismissal with the requisite notice...

"[Mr W’s] lack of contrition about any aspect of damage to the employer that may have been caused by the incident of 10 July, and his manifest defiance and antagonism towards the employer’s reasonable requirements to investigate the incident, including in particular, engaging an overtly interventionist support person for the 24 August disciplinary meeting [Senator David Leyonhjelm], ensured that the employment relationship was irreparably damaged.

"Therefore… the various actions of [Mr W] provided the employer with valid reason for dismissal with notice as opposed to summary dismissal."

Deeming reinstatement ‘plainly inappropriate’, and noting Mr W’s contract provided for four weeks’ notice of termination, Commissioner Cambridge ordered Goodyear to pay Mr W four week’s pay as compensation. This equated to $8616. 

W v Goodyear Australia Pty Limited [2016] FWC 1991 (8 April 2016) 
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