DESPITE finding valid reasons for dismissal the Fair Work Commission has ordered a major services provider to pay compensation to an employee, in this case summarised by AMMA principal legal services consultant Andrew Cameron.
Mr Anderson was employed by Thiess Pty Ltd (Thiess) for over 12 years mainly as a diesel fitter but of latter date as a trainer/assessor. While employed in this latter role on 17 June 2013, Mr Anderson sent an email from his Thiess email address with the subject matter being “World War 3 – PASS IT ON”.
The email, which outlined Mr Anderson’s personal views on people of Islamic faith, was addressed to 43 people, one of whom found the e-mail offensive and reported it to Thiess management.
In a decision handed down by Deputy President Asbury, it was found that ‘on any objective view, the email vilifies persons of the Muslim faith’ and that it was so ‘highly offensive to persons of the Muslim faith’ that ‘I do not intend to give it air-play by setting it out in this decision’.
Given that Thiess has many employees who practice Islam and close commercial ties with the largely-Muslim Indonesia, , DP Asbury found the email ‘had real potential to damage Thiess’ reputation in Australia and internationally’. Finding the e-mail had been sent against company policy, the Deputy President held that Thiess’ right to exercise control over its information technology systems was undoubted.
The DP went on to consider whether there was a valid reason for the dismissal, whether Mr Anderson had been notified of the reason, whether Mr Anderson had an opportunity to respond and whether he had been unreasonably refused a support person, all of which resolved in Thiess’ favour.
Additionally, Deputy President Asbury noted that Mr Anderson did not express any contrition or regret for his actions, rather he ‘maintained a belligerent and intransigent attitude about the email and its impact’.
In reaching a decision, the Deputy President considered the following matters:
- Mr Anderson’s age of 65 years and his limited job prospects;
- The fact Mr Anderson had worked for Thiess for over 12 years;
- The fact that prior to the email no issues had been raised in respect of his conduct, capacity or performance;
- The fact that the person who had conducted the initial investigation had determined Mr Anderson should receive a final written warning, but this had been over-ridden;
- The short time in which the investigation was conducted resulted in a failure to take all relevant matters into account (Mr Anderson was stood down at 12.05 pm and the decision to dismiss was reached at 12.30 pm); and
- The fact that there did not appear to be a consideration of a lesser penalty, despite the process providing for suspension.
Notwithstanding the foregoing findings in favour of Thiess, DP Asbury still held the termination to be unfair with Mr Anderson being awarded compensation in the sum of $28,578.68. He had sought reinstatement but this was held not to be appropriate.
Implications for employers
All investigations leading to termination of employment need to be well documented so it can be demonstrated that all relevant matters have been considered in detail, and that adequate time has been devoted to the investigation to ensure that this can be properly done.
Further where alternative outcomes are feasible, in this case that alternative was suspension, the documentation should record a consideration of these alternative outcomes and why they have been rejected.
Finally the employer will need to demonstrate that the age and length of service of the employee, where relevant, are factors that have been taken into account in reaching a final decision.
AMMA has a team of consultants who are well versed in conducting investigations and termination of employment matters and are on hand to provide assistance where required. To speak to one of our employee relations experts, contact your local AMMA office.