S*x toy in hand luggage triggers dismissal

Cases

S*x toy in hand luggage triggers dismissal

A mineworker who was dismissed for 'intentionally deviant' conduct has been awarded compensation after a tribunal ruled the process had been unfair.

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A mine operator has had to pay a dismissed employee compensation despite having a valid reason for dismissing her. The employee committed misconduct, but the employer failed to put all its allegations to her, so she did not have an opportunity to respond to them.

The Fair Work Commission also found that the employer was selective in how it how it applied its “Fair Play Guidelines”, which were used to handle disciplinary matters. However, the employee’s compensation was reduced by half because of her misconduct.

S*x toy and knife in hand luggage


The employee was a fly-in fly-out mineworker. The employer claimed it dismissed her for two incidents:
  • Placing a s*x toy and knives in a co-worker’s hand luggage before they went through airport security – done to “get back” at that employee. The knives were the employer’s property and were taken without permission.
  • Posing for a photo at the workplace with two co-workers in which they opened their employer-logoed shirts to show their bras.
It claimed that these incidents amounted to a breach of its code of conduct and its “charter values” of respect and integrity. Her conduct was “intentionally deviant”. 

However, the “show cause” letter it sent to the employee alleged only that the “respect” value had been breached (allegedly causing reputational damage to the employer) and did not refer to the “integrity” one. Therefore, she did not receive an opportunity to respond to the latter. 
 
The co-workers in the photo were warned but not dismissed, although one had previously been disciplined and the other shared the photo on Facebook. The second incident occurred two days after the employer notified her that it was investigating the airport incident. 
 
The employee claimed that several other employees had been involved in incidents of misconduct, including serious safety breaches, but none had been dismissed for them.
 
The FWC commented that this was a large employer that should not find it hard to put all its allegations into a single letter.

The employer also made the following errors:
  • The employee’s supervisor failed to complete a “culture decision tree” four-step disciplinary process, which was required under the enterprise agreement. This process was used to decide whether there were valid reasons to dismiss an employee. Had it been done, it was possible that the decision would have been a lesser sanction, such as a warning or suspension. The employee claimed that if she had received a warning after the airport incident, she would not have posed for the photo.
  • Although the employer alleged serious misconduct, the supervisor simply did not bother to follow the process.
  • Where the employee was notified of allegations of misconduct, the allegations were not specific enough.
  • The two incidents occurred five months apart, but the employer did not take any disciplinary action at the time of the first one – only after the photo incident.

Decision


Dismissal was for a valid reason, but it was unfair because the employer did not follow the process it was required to and had “no regard” to its obligations.

However, further instances of the employee’s misconduct came to light after the dismissal, and she lied during the investigation and fabricated evidence before the FWC. Reinstatement was impracticable because the relationship of trust and confidence was broken. It ordered compensation of $13,100 for lost wages, but halved it to $6550 because of the misconduct.

The bottom line: The FWC made the point that it would not hold employers to the highest standard of procedural fairness, but consider the individual circumstances of each case. In this one, the employer basically ignored the procedure it had set up, as required by an enterprise agreement, to deal with disciplinary matters. 
 
If an award, agreement or contract provision sets out a procedure to follow in cases of alleged misconduct, and the employer fails to follow it, there is a strong chance that an otherwise valid dismissal will be found to be unfair.

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