The Fair Work Commission (FWC) has upheld the dismissal of a long standing employee who made disparaging, derogatory and offensive comments about her employer’s clients in an email and then accidentally cc’d those clients into the email.
Upon being contacted by clients affected by the email, the employee was requested to attend a disciplinary meeting (with a support person if she wished) and was provided with a letter setting out the inappropriate nature of the conduct, including that it may amount to serious misconduct.
The employee declined to attend the meeting due to health reasons but, to resolve the matter quickly, was provided with an opportunity to respond in writing.
The employer subsequently terminated the employee’s conduct but accepted that she did not intend to copy the clients into the offending email. Accordingly, despite the seriousness of the conduct, the employer provided the employee with payment in lieu of notice.
The FWC found that even with 15 years of (until then) unblemished service, the employee’s making of the offensive comments alone amounted to misconduct as it breached the employer’s Code of Conduct and IT User Conduct Policy. The fact that the comments were emailed to the clients, albeit inadvertently, “multiplied the gravity of the misconduct”, the FWC said.
The FWC found that the dismissal was not harsh, unjust or unfair, on the basis that the employer had established a valid reason for the dismissal and afforded the applicant a fair process. The FWC acknowledged the employer’s decision to make payment in lieu of notice rather than to dismiss the employee summarily.
This case reminds employers to establish expected standards of conduct in policies and, even (or especially) where an employee’s misconduct is serious, to implement fair processes when addressing misconduct. It also highlights how fairness may require a softening of disciplinary action, even if the circumstances would otherwise justify summary dismissal.