Conduct

Fair Work does not determine how an employee appears in or enters the employer's space. The question for the Commission to resolve is whether there was a reason that merited dismissal.

The Commission is not required to examine whether the employer has considered the meaningful grounds for such conduct in the employee and conducted the necessary investigations. The Commission is bound to conclude whether this conduct was reasonable based on the evidence presented.

Inconsistency with the past conduct of other employees in the workspace is a matter of possible significance [6].

An employee's dishonest conduct may amount to misconduct and be considered a material condition for dismissal. However, dishonest conduct does not mechanically achieve an unreasonable employee's failure.

In the life circumstances of a particular case, but not every time, a single act that is unreasonable may serve as a ground for dismissal to reduce staff [9].

An employee's failure to comply with lawful and meaningful instructions of the employer may freeze a material condition for dismissal [10].

Serious misconduct

Resolution 1. 07 Fair Work defines serious misconduct. Gross misconduct is conduct that is considered to be egregious or deliberate and incompatible with continued employment. It is also conduct that poses a serious and unavoidable danger to the health or safety of a person or to the reputation, viability or profitability of the employer.

Ambush misconduct includes theft, fraud, aggressive assault, sexual harassment, the occurrence of intoxication in the workplace, and refusal to carry out legitimate and prudent instructions in favor of the employment contract.[14]

When gross misconduct is anticipated, the analysis of respectful dismissal remains unchanged. The test is whether the cause was "reasonable, justifiable and properly manifested."[15]

When an employee is dismissed without warning (reduced dismissal) for gross misconduct, the Commission has the ability to rule that the dismissal was harsh because it did not take into account the existence of a respectable basis for dismissal and the waiver of the reduction was a disproportionate response.[17]

Speaking of serious misconduct, there is the capacity to accept the principle set out in Briginshaw v Briginshaw [18]:

While the standard of proof remains the balance of probabilities, "the nature of the issues will necessarily affect the process by which meaningful satisfaction is achieved"[19]. And this satisfaction "should not be achieved by imprecise corroboration, uncertain testimony, indirect inference," or by weak and ambiguous corroboration or life circumstances that point tentatively toward a positive conclusion"[20].

The Briginshaw principle sets the standard of proof no higher than the balance of probabilities.[21] The strength of evidence relevant to setting precedent on the balance of probabilities "may vary with the nature of what is sought to be proved"[22]. More serious allegations may urgently require more solid evidence.

Out of hours conduct

Employers have the right to monitor the personal work of employees only in exceptional circumstances"[23].

Out-of-work hours conduct must be related to the employment relationship.[24]

Rose v Telstra[25] discusses the appropriate conclusion regarding off-hours conduct and provides a good summary:

• "The conduct must, in all fairness, be likely to seriously damage the relationship between the employee and the employer;
• the conduct must be incompatible with the employee's immediate duties"[26].
• Off-hours conduct that involves criminal conduct is not in itself a reason for dismissal[28]. Similarly, there must be a consistent link between the criminal conduct and the employee's work[29].

However, if an employee is unable to attend work for a significant period due to the fact that he or she has been convicted and is serving a sentence for a serious offence, the employer may terminate the employment contract by operation of law for setbacks[30]. .

In the absence of extenuating circumstances, dismissal for quarrels is generally not considered threatening, unjust or unreasonable.[31]

The extenuating circumstances are:

Fighting or assault

The circumstances in which the altercation occurred (e. g., whether the disqualified employee was provoked or acted in self-defense, etc.)

{membership}.

• ... There must be sufficient evidence and arguments to support the loss of trust.[41]
• The employee was found to have had a valid reason to terminate his employment contract for his actions.
• Whether the employee was a managerial employee or not.[32]

The authorities make it clear that the Commission must consider all the circumstances surrounding the incident and must not simply determine who the perpetrator is.[33]

Effect on the safety and welfare of other employees

If the employee's actions or performance affect the safety or well-being of other employees, the Commission may consider this as a valid reason for dismissal.[34]

When dealing with Occupational Health and Safety (OHS) violations that constitute gross misconduct, Fair Work Regulation 1. 07 (which defines gross misconduct) may also be relevant.[35]

This includes not only willful, malicious, or intentional actions, but also actions that may endanger other workers in the workplace.[36]

The Commission may consider the following issues when determining whether a safety violation occurred:

• An employer fired an employee for poor behavior and poor treatment of team members, customers and superiors.
• The seniority, including the employment history of the fired worker, and
• The authorities make it clear that the Commission must consider all the circumstances surrounding the incident and must not simply determine who the perpetrator is.[33]
• When dealing with Occupational Health and Safety (OHS) violations that constitute gross misconduct, Fair Work Rule 1. 07 (defining gross misconduct) may also be relevant.[35]
• The Commission may consider the following issues when determining whether a safety violation occurred:

Breach of company policy

... The mere fact that someone has lost confidence in an employee’s ability to perform his job is not enough to establish that there is a justifiable reason to fire an employee. There must be sufficient evidence and arguments to support the loss of confidence.[41]

An employer fired an employee for poor behavior and treatment of team members, customers, and superiors.

The employee was found to have had a justifiable reason to terminate his employment contract because of his behavior.

Loss of trust and confidence

The employee had a long history of performance and behavioural problems including absenteeism, non-compliance with health and safety and other company policies, and lateness. The employer repeatedly warned the employee and engaged in multiple consultations.

Case examples

Valid reason due to conduct

Poor attitude and behaviour

The employee's misconduct was found to be a valid reason for dismissal.

IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (Boulton J, O'Callaghan SDP, Ryan C, 9 September 2011), [2011) 212 IR 141].

Various conduct issues – lateness, not wearing personal protective equipment

An employee was dismissed after his forklift collided with another forklift. Considering the seriousness of the conduct and the potential risk to health and safety from the accident, it was concluded that there was a reasonable cause for dismissal.

Note: However, although there was a reasonable cause for dismissal, the dismissal was found to be harsh and unreasonable because the employer wrongfully accused the employee of deliberately causing the accident.

Recklessness and carelessness in causing forklift accident

The employee made negative and threatening comments about his colleagues on Facebook. The Commission ruled that threatening other employees is a serious problem that should not be tolerated in any workplace. The manner of the threat and the language used were sufficient grounds to dismiss the applicant for gross misconduct.

Selak v. Woolworths Limited [2008] AIRCFB 81 (Watson WP, Cartwright SDP, Foggo S 8 February 2008), [(2008) 171 IR 267].

An employee, a store manager, was dismissed for drinking two beers at lunchtime. The employer had a clear policy of not drinking alcohol during working hours. This was held to be a valid reason for dismissal.

Social media – Facebook

Leave to appeal was refused in PR936856 (AIRCFB, Harrison SDP, Ives DP, Bacon C, 27 August 2003), [(2003) 126 IR 461].

Drinking alcohol while on lunch break

A worker was found to have been drinking alcohol during his lunch break and was dismissed. The breach of policy was held to be a valid reason for dismissal.

However, having regard to recent policy changes, their inconsistent application and the worker's seniority, dismissal was held to be harsh in all the circumstances.

Drinking alcohol while on lunch break

Streeter tegen Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 januari 2008), [(2008) 170 IR 1].

An employee engaged in sexual conduct in front of a colleague in a hotel room. The colleague complained to the employer about her behaviour. After several interviews, the employee admitted that such behaviour had occurred. On appeal, it was decided that the employee's dishonest behaviour during the investigation period was a valid reason for dismissal.

The panel found that Telstra was justified in initiating an investigation because the employee's behaviour was disruptive to her work and likely to disrupt her future employment. In the circumstances, the panel also ruled that the questions Telstra asked the employee were reasonable. The panel found that the employee should have been honest with Telstra during the investigation, despite the personal nature of her activities, so that Telstra could become aware of the problem and take appropriate action to address it. Because the employee was dishonest during the investigation, Telstra could not trust that the employee would be honest with her in the future. As a result, the relationship of trust between Telstra and the employee was broken.

Dishonesty in disciplinary interview

The employee accessed pornography through her company email account, violating company policy. This was decided to be a valid reason for dismissal.

Note: The dismissal was ultimately found to be harsh, unreasonable or unjust due to a lack of procedural fairness in the dismissal process.

Woodman v. Hoyts Corporation, PR906309 (AIRCFB, Giudice J, Watson SDP, Grainger C, 11 July 2001), [(2001) 107 IR 172].

Transmission of pornographic emails

The employee was dismissed for allowing a colleague to remove items from the bar without paying for them and for lying to management when questioned about the incident. Despite the extent of the theft, the concealment was found to amount to gross misconduct and justify dismissal.

Note: The dismissal was ultimately found to be heavy-handed due to flaws in the dismissal process.

Dishonesty – co-worker stealing

Woolworths Limited (t/as Safeway) v Brown, PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [(2005) 145 IR 285].

A worker was dismissed from his job as a butcher because he refused to remove his eyebrow ring while at work.

The employee refused to comply with the employer’s lawful instructions and so was held to have been a justifiable reason for dismissal.

Breach of policy – dress code

PR928970 (Aircfb, Giudice J, Lawler VP, Foggo C, 19 MARCH 2003), [(2003) 124 IR 217] was rejected.

The employee was a manager working for a casino, but was stripped of a job due to serious illegal activities in connection with betting on a Tab on the site of the casino ensemble. It was determined that the firing had a legitimate reason.

Note: Despite the proven reason for the original dismissal, the dismissal of all events was considered cruel.

Breach of policy – gambling

PARMALAT FOOD PRODUCTS PTY LTD V WILILO [2011] FWAFB 1166 (Watson VP, Sams DP, ASBURY C, 2 MARCH 2011), [(2011) 207 IR 243].

When an employee left his hands, heads, and body under the unbalanced luggage in a forklift, he was deprived of his job because he did not comply with the safety and hygiene rules. In fact, this was determined to be a great condition for dismissal.

Employees were deprived of their jobs because they did not comply with occupational safety and health regulations. Later, the train of the train was rolled into the workplace. Employee behavior could be a reasonable condition for dismissal, which could be dangerous in the work environment.

Serious safety breach – forklift

Note) The dismissal and reasons for dismissal during the disciplinary discussion were unclear and had no effect, resulting in severe dismissal.

When an employee asked his colleague to investigate his e x-husband's financial examination, he was suspended for not complying with his employer's code of conduct.

Serious safety breach – rail

In fact, such compliance violations were determined to be the respect for dismissal.

The employee was fired for a serious crime, including assault on other employees. The committee has absolute rights to secure the compliance by imposing a fight prevention policy and firing employees involved in quarrels, unless there is room for emotional drinks. The argument in general was determined that it was generally regarded as a valid condition for dismissal.

Improper use of work information

Anderson v THISSS PTY LTD [2015] FWCFB 478 (Ross J, Hatcher VP, Simpson C, 30 January 2015).

Employees violated the company's internal rules and sent their exericful electronic messages were deprived. In particular, the fact that the electronic message slandered people who worshiped Islam and bought a grudge, which was considered to be a respect for dismissal.

Fighting/assault

Note, however, the dismissal is abandoned because the employer did not have the opportunity to settle the excess wage of the scandal, considering the results of the financial history of the person and the employee, without considering the existence of the grounds to respect. It was determined to be severe and unreasonable.

Breach of policy – offensive email

Grant v. BHP Coal PTY LTD [2014] FWCFB 3027 (Richards SDP, asbury DP, BOOTH C, 18 JUNE 2014).

Employees were on a long vacation for illness, but retired in connection with their shoulder injuries while fulfilling their duty. Later, because it was difficult to enter the workplace after the surgery, the employer strongly requested employees to consult a specialist for aggressive evaluations. Employees did not follow the doctors or the transfer method.

The employees were stripped of work because they refused to participate in disciplinary inspections without performing legitimate and meaningful instructions to receive a doctor's consultation. In one case, this was regarded as a respect for dismissal, and the approval was rejected. This conclusion was proven by the appeal trial.

Failure to follow lawful and reasonable directions

The employees were later deprived of their work because they could not stand the events in the workplace with their colleagues. The two employees received a document warning and the manager mediated. Later, due to the conflict, the final warning was issued, and the employer called for a reduction of warning.

In one case, the committee concluded that the dismissal was justified by employee's actions and based on respect. This was proven by the appeal, and the Board concluded that the case was effectively desperate and had no one to blame. The appeal has been rejected.

The employee was produced in production and was incorporated into a return to work in consideration of limited direct business. Employees actually carried two boxes of wine empty glasses, and it turned out that the reinstatement program was overweight.

Employee conflict

Employees were found to have no legitimate reason for dismissal.

After calling the administrator, the employee cut off the bulletin board and was stripped of his job for not following discipline.

NOT a valid reason due to conduct

Failing to comply with restricted duties

It was an inappropriate and unfair swearing in the workplace, but it was recognized that the employer had taken it polite. The behavior of the employee was determined that it was not regarded as a respectable basis for dismissal.

The employer accused another employee of stealing buyers for his business and in fact reported details about the buyers from this other employee, thus making the employee a witness.

Swearing/bad language

The employer did not conduct a subsequent investigation and did not give the employee an opportunity to respond to the accusations, so it was held that the employee was effectively denied procedural fidelity. The Commission concluded that the dismissal was unconscionable.

The employee was deprived of his job for serious misconduct related to physical assault on another employee.

Failing to report other employee's dishonesty

In fact, it was pointed out that in this case the employer had not even suggested "rudimentary evidence" that the employee had committed an offensive attack. It was held that in fact there was no justifiable ground for dismissal.

The employee was subsequently deprived of his job for serious misconduct, including a complaint from a former tenant for whom the employee was in care.

Fighting/assault

It was found that the employee probably would not have conducted an overwhelming investigation or made the incident public, but it was not a mistake that would have affected the tenant's welfare and jeopardized the employer's business. It was held that in fact there was no justifiable ground for dismissal.

The employee was deprived of his job for illegal allocation of clubs and fraud. The employer even revealed that the employee had received payments from the employer for another organization and tried to conceal his position when the other organization returned the funds.

Shortcomings in reporting an injured patient

The employee was found to have actually authorized the monitoring in the screening and paid the necessary amount from another organization, which was created for the employer's corresponding purpose and the employee reasonably believed that the amount would be returned. Thus, there was no just cause for dismissal.

The appeal resolution was denied by Print P3975 (AirCFB, Ross VP, Drake DP, Dight C, 13 August 1997).

Allegations of misappropriation and fraud

The employee had been deprived of work due to poor performance and failure to follow lawful instructions. The employer ordered the employee to undergo 15 hours of training outside of working hours, but the employee adamantly refused.

In fact, it was held that this was not a respectable ground for dismissal.

Alleged failure to follow employer's lawful and reasonable direction

The employee was deprived of work due to serious misconduct related to the theft of beverages.

It is pointed out that if the reason for the dismissal is suspected of execution of a crime, the proof criterion requires something more than "just suspicion, doubt, and suspicion". The court determined that the dismissal had no legitimate reason, based on evidence that existed at the time of dismissal.

The employer was accused of stealing oil. After suspected of theft, the employer searched for employee cars under employee meeting and collected oil samples. The evidence was determined to be unusable for the proof of misconduct, and there was no legitimate reason for dismissal.

Criminal matters – theft of alcohol

The ruling determined that the utility and containers were clearly personalized by employees. The user strictly committed a crime by touching the container. Opening the bottle and taking out the oil, the user committed theft (theft). Simply put, the user did not have the authority to search for employee's property and seize oil, and the act was illegal. The evidence obtained from this illegal act includes the storage of suspected samples and analysis in the analysis agency.

Lee V. Superior Wood PTY LTD [2019] FWCFB 2946 (SAMS DP, GostEncnik DP, McKinnon C, 1 MAY 2019).

Employer used illegally obtained evidence to support allegation of theft

The plaintiff was hired as a temporary worker. A new policy of the company has introduced a fingerprint scanner to record a workplace. Employees were encouraged to register their fingerprints to record their work.

The applicant argued that biometric data is a subtletical personal information based on the 1998 Privacy Law (CTH), and that employers do not have the right to demand this information. The employer responded by providing a document explaining the nature of the collected data to the applicant's concerns. The employer warned the applicant in oral and written in writing that he did not follow the new company policy. Later, the applicant was fired because he refused to use a biological fingerprint scanner.

Refusal to follow company policy

The court assumed that the applicant was unfairly dismissed, it was illegal (violating the Personal Information Protection Law) to be instructed to follow the company's policy, and the applicant has the right to refuse to follow the instructions. Decided. < SPAN> If the reasons for the dismissal are suspected of execution of a crime, it is pointed out that the proof criterion requires something more than "just suspicion, doubt, and suspicion". The court determined that the dismissal had no legitimate reason, based on evidence that existed at the time of dismissal.

The employer was accused of stealing oil. After suspected of theft, the employer searched for employee cars under employee meeting and collected oil samples. The evidence was determined to be unusable for the proof of misconduct, and there was no legitimate reason for dismissal.

The ruling determined that the utility and containers were clearly personalized by employees. The user strictly committed a crime by touching the container. Opening the bottle and taking out the oil, the user committed theft (theft). Simply put, the user did not have the authority to search for employee's property and seize oil, and the act was illegal. The evidence obtained from this illegal act includes the storage of suspected samples and analysis in the analysis agency.

Lee V. Superior Wood PTY LTD [2019] FWCFB 2946 (SAMS DP, GostEncnik DP, McKinnon C, 1 MAY 2019).

Loss of trust and confidence

The plaintiff was hired as a temporary worker. A new policy of the company has introduced a fingerprint scanner to record a workplace. Employees were encouraged to register their fingerprints to record their work.

The applicant argued that biometric data is a subtletical personal information based on the 1998 Privacy Law (CTH), and that employers do not have the right to demand this information. The employer responded by providing a document explaining the nature of the collected data to the applicant's concerns. The employer warned the applicant in oral and written in writing that he did not follow the new company policy. Later, the applicant was fired because he refused to use a biological fingerprint scanner.

The court assumed that the applicant was unfairly dismissed, it was illegal (violating the Personal Information Protection Law) to be instructed to follow the company's policy, and the applicant has the right to refuse to follow the instructions. Decided. It is pointed out that if the reason for the dismissal is suspected of execution of a crime, the proof criterion requires something more than "just suspicion, doubt, and suspicion". The court determined that the dismissal had no legitimate reason, based on evidence that existed at the time of dismissal.