When is it Unfair Dismissal?

A controversial Unfair Dismissal ruling involving ‘tagging colleagues on social media’ and pranks with sexual undertones

A recent decision by the Fair Work Commission that a dismissal was unfair because it was too harsh forces us to again think about how to protect our businesses from claims that border on the ridiculous.

The Fair Work Commission made a recent ruling that a psychiatric nurse, Mr Renton, who worked for Bendigo Health Care was unfairly dismissed after tagging his colleagues on Facebook in a video with sexual images and playing practical jokes with sexual undertones on the same colleague.

The video in question was of an obese woman in her underwear dropping her stomach onto a man’s back who was on all fours also in his underwear. In the video, the woman says ‘how heavy is that’ and ‘a little horsey’. Mr Renton, tagged his colleagues with the line ‘Frank Christie getting slammed at work by Jo Keown at work yesterday’.

Furthermore, Mr. Renton left blobs of sorbolene cream on the same colleague’s desk, was taken to be a practical joke and suggesting that someone had masturbated on his desk.

The Employer, Bendigo Health Care, terminated the employee for serious misconduct, stating that he caused an imminent risk to health and safety of the employee’s affected and the reputation of the employer.

Although the Commission found that the dismissal had a valid reason, that the decision to terminate employment was unfair because it was harsh and ‘disproportionate to the gravity of the misconduct’.

We are surprised by the ruling that this decision was harsh and have included the graphic video posted on Facebook below for you to form your own opinion. If you are easily offended, or under 18 we suggest you don’t view it. 

Even the Commissioner said that “Mr. Renton’s conduct displayed an appalling lack of judgement and concern for the effect making such a post might have on his two colleagues”. She also stated that “further, the conduct of Mr. Renton in this case has spilled into the workplace. His reference to the slamming occurring at work adds an additional layer to the inappropriateness of his conduct that cannot be ignored. His actions have had a detrimental effect on two of his colleagues”.

The employee’s conduct, although having occurred outside work and on his private Facebook page, extended to the workplace because he tagged his work colleagues and implied that the sexual activity had occurred at work. Furthermore, he brought reputational damage to his employer.

So, with a valid reason for dismissal, how could the decision to terminate the employee be determined to be unfair?

The Unfair Dismissal provisions assess three areas when determining if a dismissal qualifies as an Unfair Dismissal:

  • Was the decision harsh?
  • Was the decision unjust?
  • Was the decision unreasonable?

Even though the decision was for a valid reason, the Commissioner found that “the decision to terminate Mr. Renton’s employment was harsh in that it was disproportionate to the gravity of the

Misconduct”. The Commissioner also considered the economic and personal consequences of the terminated employee, which factored into the decision that the dismissal was unfair because it was harsh.

Below is the video in which Mr. Renton tagged his work colleagues. What would you do if one of your employees posted this? Were Bendigo Health being harsh in their decision to terminate the employee?

**Warning: Content unsuitable for readers under 18, or those who take offence to inappropriate images **

So, what does this case mean business owners? Again, it would seem that a worker’s behaviour has to be quite extreme for a dismissal decision to stand based on this case. Here at HR Gurus, we would always recommend that as a minimum a company has clear outlined expectations of behaviour and social media conduct in their policies, procedures and employment agreements. Too often we see Small Business employers fall into the trap of terminating employees without the correct policies in place as well as the correct process.

Before you decide to sack a worker, make sure you consider all the factors that make up an unfair dismissal, being unjust, unreasonable or harsh decisions.

Always make sure you have followed a proper process so that you are less likely to end up defending an unfair dismissal claim. Having values, policies and a proper process for investigating misconduct will all help.

If you are unsure, we are here to help. Call HR gurus on 1300 959 560 where our qualified and experienced team can help you through any tricky situation you may have.

This blog was written by resident HR Guru, Jessy Warn.

 

 

 

 

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