According to the Fair Work Commission’s (FWC) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC. In the 2017-18 reporting period, more than 13,000 unfair dismissal applications were lodged by employees across Australia.
Clearly, unfair dismissal continues to be one of the main areas of dispute between employers and employees.
The Fair Work Act 2009 (Cth) sets out the matters that must be considered by the FWC when determining whether a dismissal was in fact unfair. One of the most important matters for consideration is whether there was a “valid reason” for the employee’s dismissal.
Over the years, case law has established that a valid reason must be sound, defensible and well founded, and should not be capricious, fanciful, spiteful or prejudiced.
It is often on this question of whether there was a valid reason for dismissal that employers and employees clash. Employers may view an employee’s conduct, performance or safety breaches as extremely serious but the employee views those same things as minor infractions not warranting attention, let alone the kind that results in loss of employment.
A ‘cool as hell’ photo
Two recent cases from the FWC highlight this kind of discrepancy in the characterisation of events.
An employee at a mine site was dismissed after he posed for a photo standing on top of a piece of heavy machinery that was parked, but still running. In the photo (that was posted on Facebook) the employee was pictured standing on the machine with one foot on top of the cab while holding a large metal roof bolt in his right hand.
The employer considered the employee’s actions a serious breach of its safety policies and rules, as well as conduct that was capable of causing harm to the employer’s reputation and business.
Upon discovering the photo, the employer informed the employee of the seriousness with which it was treating his conduct and asked him to show cause as to why his employment should not be terminated.
The employee responded with a somewhat sarcastic email in which he said he posed for the photo because he thought “it’d just look cool as hell”.
The employer subsequently terminated his employment.
In determining the employee’s unfair dismissal claim, the FWC considered all the relevant policies and procedures of the employer related to safety, including those concerning the isolation of machinery. The FWC also considered recent developments at the mine site where the main operator of the site had contacted the employer about a spate of injuries, insisting that the employer do more to prevent safety incidents.
The FWC found the employer had a range of safety policies, rules and procedures in place and the employee had been trained appropriately in these. On this basis, he should have known that climbing on top of a piece of heavy machinery that was still running was a breach of the employer’s safety policies, procedures and rules.
Further, the FWC accepted there were valid reasons for dismissal, in that the employee’s actions were not only risky in terms of safety, but also risked the employer’s reputation and business interests because one of its biggest partners had recently warned it about its safety record.
At the hearing of the matter, the employee accepted that his conduct was out of line and was a silly thing to do, but he did not accept that he could have fallen off the machine or that his conduct amounted to a breach of the employer’s policies or procedures. The FWC commented: “These refusals, together with the contents of his response to the ‘show cause’ request demonstrate [the employee’s] lack of genuine remorse and acceptance of accountability for his conduct.”
The FWC found there was nothing unfair about the employee’s termination and his application was dismissed.
Dismissal at 20 paces
Everyone has different hobbies, activities or interests they want to share with their friends and colleagues at work. However, not all interests are appropriate for the workplace.
In Rodger v ACT Government – Transport Canberra and City Services T/A ACTION  FWC 6970, the FWC held that an employee’s conduct in bringing ornamental duelling pistols and inert booster charges in to work to show his colleagues created a risk to safety and constituted misconduct.
In June 2017 the employee’s service was terminated after an investigation by his employer found that in January 2017 he brought two explosive booster charges to work and, on a previous occasion, had brought two duelling pistols to work.
The employee lodged an unfair dismissal application submitting that his dismissal was unfair given his unblemished 17-year work record, and that his misconduct did not warrant dismissal.
The employer argued there was a valid reason for dismissal as the employee’s conduct in bringing the items to work created a health and safety risk to employees and others in the workplace. The employer submitted that the employee’s behaviour constituted misconduct under the applicable enterprise agreement and had the potential to bring the employer into disrepute.
While the employee agreed that he brought the items into work to show his colleagues, he argued the items were not active and as such were not a genuine risk to health and safety. The employee said he explained to his colleagues that the items were not active and at no time did his colleagues raise any concern about a risk to their health and safety. The employee also submitted that he brought the booster charges into work to make an effort to talk to his colleagues.
Although it was in dispute whether the items were operational or not, the FWC was satisfied that by bringing the booster charges and duelling pistols in to work the employee nevertheless created a risk to health and safety. The deputy president remarked that:
While it is clear from their statements that none of the employees who saw the charges/guns felt intimidated or concerned about them being in the workplace, this is in my view due to good fortune rather than the absence of any risk to safety. Other employees may have reacted very differently in the circumstances and may have legitimately been fearful for their safety.
The FWC also found that the employee’s conduct in bringing the items into work had the potential to bring the employer into disrepute. For the FWC, it was irrelevant whether the items were operational or not, as the employee had no legitimate reason to bring them into work.
Accordingly, it was held that the employee’s behaviour was misconduct, which was a valid reason for the termination of his employment. The FWC dismissed the employee’s submissions that the dismissal was unfair given his unblemished record, noting his misconduct outweighed this consideration.
The FWC found the dismissal was not harsh, unjust or unreasonable and rejected the unfair dismissal application.
Lessons for employers
Employers have obligations to ensure the health and safety of all employees. This obligation requires employers to minimise or eliminate both physical and psychological risks to health and safety. This duty was recognised by the FWC in this matter where it was agreed that the employee created a risk to health and safety by bringing the booster charges and firearms into work – or, in the first case, by posing on a piece of running machinery.
Employers are entitled to expect high standards of conduct from their employees. This includes expecting that employees will not act in a manner that negatively impacts on the reputation of the employer.
Where an employee engages in inappropriate conduct, an employer is within its rights to treat that conduct as serious in nature, even if the employee considers it trivial or not their fault.
These cases demonstrate that, even if an employee doesn’t think their conduct is grave enough to warrant dismissal, the FWC will treat serious matters seriously and valid reasons as valid, despite an employee’s characterisation to the contrary.