As the Festive Season reaches its peak Down Under, we have taken a look back at the more ‘interesting’ cases of 2016 to help Santa prepare his Naughty or Nice List for Australian employers:
- First to be considered for Santa’s list is a labourer who, in the midst of a heated discussion, somewhat unchantably called the CEO an “old c***”. Shortly after this exchange, the CEO sacked the labourer by text message. Despite the FWC finding that this misdemeanor constituted a valid reason for dismissal, the labourer was successful in his unfair dismissal application because the CEO did not follow a fair disciplinary process. Hain v Ace Recycling Pty Ltd  FWC 1690.
- Next up is a Western Australia printer caught moonlighting as an Uber driver when he accidentally gave his manager a ride home one Saturday night. Despite his contract expressly requiring that he obtain consent for external employment, the printer continued to lie about his involvement with Uber and ignored attempts by his employer to resolve the matter. The FWC held that the dismissal was not unfair because the printer’s conduct “undermined…trust and confidence in him as an employee”. Mervyn Jacob v West Australian Newspapers Limited T/A The West Australian  FWC 5382.
- The third contender is a Coles employee who tested positive for cannabis but claimed to have consumed it outside what he believed to be the “window of detection”. He claimed that his dismissal was unfair because cannabis helped him deal with work-related stress and he smoked it well before his shift. The FWC dismissed his unfair dismissal application because, on the objective evidence, the cannabis was consumed only the morning before his shift and this act constituted a flagrant breach of the company’s zero-tolerance drug and alcohol policy. Shane Clayton v Coles Group Supply Chain Pty Ltd  FWC 4724.
- Fourth off the mark is a general manager who, after being sacked, was found to have downloaded and stored pornographic material on his company phone and laptop and also used the devices to record images and videos of himself performing sex acts. Despite this, the FWC found that he had been unfairly dismissed because the company had no policy confining the use of its equipment to work-related activities (though quite why you should need telling that things of that nature are better left unrecorded, I am not sure) and the dismissal process was fundamentally flawed. Allan Croft v Smarter Insurance Brokers Pty Ltd [ABN: 15 601 405 323]  FWC 6859.
- A sacked truck driver is fifth in line to be snubbed by Santa this year after he was caught urinating in a CBD laneway by a City Inspector during his shift. The driver immediately reported the incident to his supervisor and was genuinely apologetic. The FWC found that while urinating in public is not acceptable conduct by an employee, the dismissal was harsh because it was disproportionate to the conduct, the driver was genuinely apologetic and had a good employment record. Bonny Walia v Citywide Service Solutions  FWC 7814.
- The sixth candidate is a worker who lodged an unfair dismissal claim after he was sacked for persistently sending unwelcome and inappropriate text messages to a colleague despite being formally warned against doing so. The FWC found that dismissal was not unfair because the repeated unsolicited text messages, even the ones sent after hours, constituted a clear breach of the employer’s harassment policy and therefore a valid reason for dismissal. Further, the worker was provided with procedural fairness in the form of a formal investigation before the ultimate decision to dismiss was reached. Soomro v Murray’s Australia Pty Limited T/A Murray’s Australia  FWC 8211.
- Last but not least is a long-serving Qantas flight attendant who, following a random search, was found to have a can and a bottle of beer in his jacket, a 50ml bottle of gin in his bag and two 50ml bottles of vodka in his trouser pockets. He had initially lied about deliberately taking them from the flight. In considering the flight attendant’s unfair dismissal application, the FWC found that, while a valid reason existed, the dismissal was too harsh given his unblemished tenure, the small value of the stolen items, the fact that he corrected his story and the reduced likelihood of his finding another job at the age of 50. Dawson v Qantas Airways Limited  FWC 8249.
While we hope this list provides some assistance to Santa, it also provides a closing reminder to employers that no matter how badly an employee acts, his dismissal may still be deemed unfair if he has not been afforded due procedural fairness. However unarguable and unacceptable the conduct, failure to go through the right procedural hoops can still mean that all that you will get from Santa for 2017 is an unfair termination claim.