The Fair Work Commission (FWC) has dismissed a warehouse supervisor’s unfair dismissal claim after finding his employer’s instruction to keep confidential the potential redundancy of his position as a result of COVID-19 was a lawful and reasonable direction.

The employee shared a letter about his potential redundancy with 12 other colleagues and former colleagues in a WeChat group message despite the letter providing a clear and reasonable direction to keep its contents private and confidential and avoid causing distress to the broader workforce.

In the decision of last Thursday (24/9/20) , the FWC found the employer had a valid reason to dismiss the employee for failing to keep the details of the redundancy confidential and rejected the employee’s evidence that his previous workplace claims had anything to do with his dismissal.

Background

In late March, as concerns about COVID-19 began to rise, the managing director of the respondent, a large distribution company, discussed with the applicant, a warehouse supervisor, the need for operational changes and the temporary closure of the warehouse.

On 9 April, the warehouse supervisor received a letter about his position potentially being made redundant following a review of the business’ operating requirements and need to improve efficiencies and reduce costs as a result of COVID-19.

Two days after receiving the letter, the supervisor shared it in a ‘WeChat’ group message with a number of current and former colleagues. The employee claimed he shared the redundancy notification letter with colleagues because he was under the impression they had a received a similar letter.

The supervisor was given a deadline to respond to the redundancy consultation before the employer made any final decision. The employer extended the time for the warehouse supervisor to respond and after not hearing from the supervisor by the specified time, provided a further extension.

On 21 April, the deadline for the further extension, it came to the managing director’s attention that the warehouse supervisor had shared the redundancy consultation letter in the WeChat group message with other employees. The managing director sought legal advice and shortly after issued the warehouse supervisor a show cause letter directing him to provide a written response and attend a telephone meeting.

On the day of the planned meeting, the managing director had not received a response from the warehouse supervisor and attempted to phone him on three separate occasions which all went unanswered. Despite not hearing back from the supervisor, the managing director notified the supervisor he had extended the time for him to reply to 4 May with another meeting planned for the same day.

The managing director again attempted to phone the supervisor on three more occasions prior to the extended deadline, all of which went unanswered. After receiving the supervisor’s late written response, the managing director did not attempt to contact him for the scheduled meeting, making a reasonable assumption that the supervisor would again not answer his call.

Based on the available information, the managing director concluded that the supervisor’s continued disregard and failure to follow directions meant that termination of his employment was the only appropriate action.

Sharing redundancy information flagrant, mischievous and without reasonable cause

In hearing both parties’ evidence to the unfair dismissal application, FWC Deputy President Bull found no difficulty in accepting the employer’s proposition that the direction to keep the redundancy information confidential was lawful and reasonable.

DP Bull found it was “not unreasonable that consultation regarding his position being potentially redundant remain between the supervisor and his employer and that such instruction was designed to minimise stress and maintain morale within the workplace as much as possible.”

This supported the employer’s contention that the direction was issued because “staff were already distressed by the current uncertainty surrounding the impact of COVID-19 and wanted to keep news of potential redundancies restricted to only those involved in order to avoid adversely impacting on staff morale.”

“It was simply not open to the supervisor to take it upon himself to distribute the confidential correspondence to others,” DP Bull said.

DP Bull found the employee’s distribution of the redundancy consultation to be flagrant, mischievous and without reasonable cause, and provided his employer with a valid reason for dismissal.

“The supervisor’s non-compliance with the employer’s timeframes and failure to respond to the employer’s attempted contact without explanation provides further support for this conclusion,” he said.

DP Bull noted that while “the supervisor was at home and being paid, he still had an obligation to comply with work-related instructions and was not at liberty to ignore attempted contact by his employer.”

DP Bull found the employer’s reliance on the supervisor’s failure to adhere to prescribed deadlines and to answer telephone calls, together with the breach of confidentiality, constituted a valid reason for dismissal.

In his evidence the supervisor said he shared the letter to demonstrate he was being targeted for a redundancy after making a complaint against the managing director in 2019 for the alleged misuse of company credit cards. The employee’s evidence also referred to an underpayment claim he said he made to the compliance manager at around the same time.

Evidence from the employer suggested the managing director was unaware that the supervisor was the person who made the complaint against him until his unfair dismissal application was lodged. The compliance manager also gave evidence that the supervisor did not make any claims of underpayment to her and if he had it would have been escalated to the managing director.

DP Bull rejected the employee’s assertions that his dismissal was the result of him making a number of workplace complaints.  DP Bull said, “these allegations were not made out by the evidence and relied upon inferences being drawn and were not able to be supported over and above the reasons provided by the employer.”

Further, DP Bull concluded the reasons argued by the supervisor for his decision to distribute the confidential letter did not lessen the seriousness of his breach of a lawful and reasonable instruction and that his dismissal was a proportionate reaction by his employer.

The application was dismissed.

Implications for employers

This decision is a reminder that employees also have obligations to uphold in regards to the employment relationship. Employers expect a standard of behaviour and conduct in the workplace and the ability for an employer to take action to uphold those standards is critically important.

In recent times, the FWC has reminded employers that the usual provisions of the FW Act including unfair dismissal and general protections continue to operate despite some additional measures being temporarily included as a result of JobKeeper.

Unfair dismissal and adverse action reforms remain a priority for resources and energy employers. AMMA has continued advocating for employers to be supported in terminating employees found to have breached safety and/or community standards of conduct.

AMMA recognises that the cost to employers in defending these types of matters is very high compared to the minor cost to the applicant and continues to advocate the need for a faster and lower cost dispute settling process.

Termination can be a difficult and controversial road to navigate for resource employers, especially where rights and responsibilities are unclear. For information and advice on how to manage discipline within the workplace, speak to AMMA’s workplace relations consultants by contacting your local AMMA office.