In determining whether an employee has been unfairly dismissed, the Fair Work Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable. This decision will involve consideration of a range of pertinent factors, including whether there was a valid reason for dismissal.
When deciding whether there was a valid reason for dismissal, the courts will consider the context of any action (or non-action) and the conduct of the employee in question. This is a significant consideration for cases which involve a breach of policy in the context of an employee wrongfully obtaining a benefit related to their employment. In such circumstances, employers can be quick to dismiss an employee, which is not always a decision upheld by the Fair Work Commission.
Based on the cases referenced below, it appears the Fair Work Commission is most concerned about whether the alleged acts of misappropriation or breach of policy were done dishonestly. If dishonesty is not established, the dismissal may be ruled as harsh, unjust, or unreasonable, especially in circumstances where a written warning would suffice. For example, in the case of Lance Camilleri v IBM Australia Limited (U2014/5954), Mr Camilleri was entitled to travel benefits and was reimbursed for those expenses. Mr Camilleri was dismissed following an internal audit which revealed he had made 141 improper claims for expenses which were non-related to his employment travel benefits.
The Fair Work Commission held that the breach constituted a valid reason to terminate Mr Camilleri’s employment. However, the Commission still found that the dismissal was unjust because there was an excessive delay between the breaches and the dismissal. Further, the employer failed to consider the fact that Mr Camilleri had been employed for over 17 years, and the Commission considered that Mr Camilleri had offered to reimburse the employer for the benefit that he had wrongfully obtained. The Commission ordered Mr Camilleri’s reinstatement and awarded him 50% of his lost remuneration.
In the cases of Sione Amiatu v Toll Ipec Pty Ltd T/A Toll (U2014/13166), Franke Ioane v Toll Ipec Pty Ltd T/A Toll (U2014/13167) and Marcello Mastroianni v Toll Ipec Pty Ltd T/A Toll (U2014/13168), three Toll employees were given the option to resign from their employment following an event of alleged misconduct. The allegation of misconduct involved removing items of clothing (work uniforms) from a cardboard box and later wearing these clothes on site. This was captured on CCTV footage.
Once the employer became aware of the employees’ misconduct, an investigation and disciplinary procedures commenced. The Transport Workers’ Union (TWU) proposed that the employees be given the option to resign from their employment, to which the employees subsequently agreed to. The employees met with TWU and were informed of the employer’s intention to terminate their employment and “call the coppers”. As a result, the employees submitted their letters of resignation on the paper provided by TWU and in wording which was dictated by a TWU organiser.
All three employees later lodged applications for unfair dismissal. The Fair Work Commission held that they had been forced to resign due to the employer’s course of conduct. Commissioner Lewin stated at :
“I am not satisfied on the evidence before me that it is established that the actions of the Applicants in appropriating the items of uniform work clothing are aptly described as dishonest. The evidence weighs heavily against a conclusion that the motives and intentions of the Applicants were dishonest or dishonourable. The meaning of the word dishonest is “not honest”. The meaning of the word honest is “honourable in principles, intentions and actions”. In my view, the intentions and actions of the Applicants were misguided but not dishonest. I am not satisfied that the Applicants intended to permanently deprive Toll of the uniform work clothing. On the contrary, in my view, their intentions were manifest, insofar as they used the property for their work for Toll in full view of Tolls’ personnel and its surveillance system. When challenged about their actions they were frank, open, and sincere when responding they had taken the relevant items for use at work and that they believed they had acquired the items of uniform work clothing innocently. In this regard, I consider they were at all times truthful and frank.”
Commissioner Lewin suggested that the employee’s conduct should have been characterised as a failure to follow the required procedure for acquiring uniform work clothing. He stated that dismissal was disproportionate and a warning would have been sufficient. The employer was then ordered to make payment for loss of wages for two employees and reinstatement was ordered.
In the case of Geoffrey Atfield v Jupiters Limited trading as Conrad Jupiters Gold Coast, Mr Atfield was dismissed for an alleged breach of Jupiter’s gaming policy. Mr Atfield placed a bet on a rugby league match at a TAB outlet located within the casino complex. This bet was in breach of Jupiter’s policies.
Mr Atfield claimed that he had not been aware of the prohibition on employees to bet at the TAB located within the hotel before making the bet, and took the matter one step further by positively cancelling the bet as soon as he had been made aware of the policy. Despite this, Jupiter terminated Mr Atfield’s employment for gross violation of a company policy. The Fair Work Commission later held that the dismissal was harsh, unjust, and unreasonable and highlighted that it was unrealistic for an employer to expect an employee to read and digest a company’s handbook within two hours.
It is evident from the above cases that the Fair Work Commission considers the entire context and conduct of the employee when assessing whether there was a valid reason for dismissal and whether the dismissal was harsh, unjust, or unreasonable. The key point from these cases is that honesty is always the best policy.
If you have recently been dismissed from your employment for a breach of company policy, or for obtaining a benefit from your employment, you should contact an employment lawyer immediately.