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Introduction

Full decision here.

What happens when an employee brings his 11-year-old boy to his place of work? What if also, it was the employee’s day off, and he used the workplace to change the brake lining on his personal vehicle? Not father of the year according to the FWC in this matter.

This is an interesting decision, as it explores after hours and post-employment conduct, safety issues (even though after hours), what constitutes serious misconduct – all against the backdrop of a seemingly innocent act of bringing a child to daddy’s place of work.

Background

The applicant in this matter had worked for his employer for nearly 7 years, until his summary dismissal “without notice” for serious misconduct. The applicant was 45 years of age and married with four dependent children.

It was common practice for employees to be able to utilise the workshop of their employer for personal use as long as they (a) had previous permission of the employer; and (b) there was a second employee present for safety reasons.

The prior permission was in dispute, with the applicant stating that he had the “verbal” permission of his supervisor, but the supervisor not recalling having given such permission. The second part was provided by another employee being present undertaking his own personal work.

Bring your kid to work day?

Whilst the Deputy President in this matter was willing to give the applicant some benefit of the doubt in terms of prior permission, the DP agreed with the respondent’s decision to dismiss the applicant for allowing his 11-year-old son to attend with him – even taking a picture of the young person on an (idling) forklift and positing said photo’s to his personal Facebook account (which included a number of his workmates.

Long story, short, the employer caught wind of this and after a suspension and investigation, the applicant was summarily dismissed (ie without being paid notice). Except for the serious misconduct the applicant would have been entitled to five weeks’ notice.

The workshop

As agreed by the DP, a vehicle repair workshop is not an ideal place for an 11-year-old to be with all sorts of dangerous equipment and a “dangerous” open pit used for under carriage inspections and work.

Despite, the applicants claims that the boy was under his constant supervision, both the company and the DP disagreed.

The company, following the investigation, in forming it decision to dismiss the applicant the company had formed the view that permission was probably not given for the applicant to work on his car and in any event it certain that no-one had provided permission for a minor to be on site (even if permission to replace brake pads had been given). It further was not impressed with having a child unrestrained on site was a high safety risk, that the consequences for the business should an accident to the child occur would be serious and that placing a child on a forklift was unauthorised and unsafe. He also formed the view that posting the photo of the child on the forklift to a site viewed by others was reckless and potentially damaging to Jamieson’s reputation.

The DP viewed that the applicant had taken no responsibility for his actions and had shown no remorse or contrition.

Following the dismissal

Upon his dismissal, the applicant left work for the day. He was angry. He told the manager that he “would not be making it easy for the company” or words to this effect. Adding “and thanks for nothing, you c**t” and followed up with “and by the way you better watch your back”.

The applicant remained extremely angry in the days and weeks that followed his dismissal, using this time to post derogatory comments about the company on his Facebook page, “trailers don’t last long from this place” and that its products were “overpriced Chinese crap”. Also, taking the company’s corporate logo, placing it on his page alongside a statement “keep away from products made in China”.

The DP’s view

The Deputy President, took a very dim view to the applicant, both as a witness and a father, stating:

“The decision to bring his 11-year-old son onto the work premises with him that Sunday morning was [the applicant’s] decision, and his alone…

“In bringing his son onto the work premises [the applicant] acted recklessly and outside the terms of any permission he was granted or considered he held to work on his private motor vehicle”.

Was this serious misconduct?

The DP continuing:

“Whether this breach was serious requires an assessment of relevant circumstances. Those are:

  • [The applicant’s] son was 11 years old. He was a child and not one of teenage years. A child of 11 years has limited capacity to maturely assess safety risks or control behaviour;
  • [The applicant] did not keep his son in the vehicle. He took him out of the vehicle and onto the site grounds;
  • [The applicant’s] son sat nearby [the applicant], did not wander and came to no harm; and
  • [The applicant] and his son walked some few hundred metres across the site to clean up at the conclusion of the repair.

“Aside from the young age of the child, there are aggravating circumstances:

  • [The applicant] and his son were within two to three metres of an open pit (used to work on the undercarriage of vehicles) which carried an obvious risk of fall. The photograph posted shows a sign immediately adjacent ‘DANGER OPEN PIT’.
  • It is not plausible that [the applicant] had his undivided attention on his son at all times. Moving around a car and replacing brake pads requires attention to the vehicle in order to do the job; and
  • This was not for a momentary period of time. The repair lasted some 45 minutes.

“Taking these factors into account, I conclude that bringing his son onto the premises without permission was a serious error of judgment on [the applicant’s] part. Whilst he was concerned as a parent to make sure his child did not get into trouble or wander too far, it reflected an indifference to his employer’s safety policies and the risk and liability it carried should a safety incident with the child have occurred.

“It was a serious error of judgment and as such capable of forming part of a valid reason for dismissal”.

Sitting his child in the forklift

“[The applicant] accepts that he sat his child on the nearby forklift, showed his son the steering wheel and the forklift controls and pedals and then stepped back from the child to take a photo.

“While I accept that [the applicant] had his arm around his child whist seating the child in the forklift and showing him the controls, he left the child fully unrestrained for a short period of time whilst he stepped back and took the photo”.

Was this a serious breach?

“Overall, putting his son into a forklift on the business premises was a serious error of judgment. It bore no relationship to the purpose for which [the applicant] entered the site (working on his car) and it presented a material safety risk. As such it was capable of forming part of a valid reason for dismissal”.

Uploading of photo onto Facebook

“[The applicant] accepted that he uploaded the photo of his son to his Facebook site that afternoon alongside a caption he wrote:

“dads turn to home school. Today’s lesson learning to replace brake pads and driving forklift.”

“Being at the lower end of the scale it did not warrant dismissal in its own right. However, the photo being consequential on that morning’s failures (bringing his child on site without permission and placing his child on the forklift whilst photographing the child unrestrained) it compounded those breaches and was a relevant consideration in the decision to dismiss”.

Conclusion on valid reason

The DP finding that there was a valid reason for dismissal:

“Whilst repairing his private motor vehicle on site on 5 April 2020 was not misconduct, the surrounding conduct that day by [the applicant] exhibited an indifference to his obligation to comply with safety rules and was inconsistent with his employer’s interests and obligations. Whilst some of the failures were more serious than others, the failures of duty (particularly bringing his child on site without permission and then putting him into a forklift) collectively were a valid reason for dismissal.

“This conclusion weighs against a finding of unfair dismissal”.

Personal circumstances do not override conduct

The DP considered the applicant’s circumstances in light of the applicant’s argument that the consequences of the dismissal:

“…rendered him unemployed, made it difficult for him to get another job (especially given COVID-19 impacts) and put him and his family under financial pressure especially as he was, at that time, the primary breadwinner with four dependent children”.

“Each of these considerations, whilst relevant, are not unique. They do not materially mitigate breaches of duty and the valid reason they constitute. They do not transform a dismissal for a valid reason into one that can be characterised, at law, as harsh”.

Serious misconduct – the test

The DP:

“This matter concerns summary dismissal for serious misconduct.

“My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal was harsh, unjust or unreasonable.

“The onus of proof to establish unfairness rests on [the applicant].

“However, in matters of misconduct, the employer carries an evidentiary burden to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings have been based on the requisite standard of proof”.

The DP citing:

“The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd as follows:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

“In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post:

‘Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

“It is in that weighing that the Commission gives effect to a ‘fair go all round”’.

Did the punishment fit the crime?

Hmmm, according to the DP:

“The issue which remains is whether the sanction imposed was disproportionate to the misconduct in the context of the overall circumstances.

“I do not consider that dismissal for the failures…was disproportionate. Those failures were of [the applicant’s] making, were entirely avoidable and occurred over a period of hours. He decided to bring his child onto the work site without permission hours before he decided to put his child on the forklift and that occurred hours before he then decided to download the photo of his child on the forklift. This was a sequence of interrelated decisions that reflected poor judgment, not a singular moment of a rush of blood to the head”.

“These decisions were cumulative errors of judgment. The errors did not involve misconduct in the performance of his duties as an employee but they were errors nonetheless that carried avoidable risk to his employer. [The applicant] did not adequately calibrate his private instincts as a father with his responsibilities to his employer. He mixed private and workplace interests and this clouded his judgment. His misjudgement originated from the fact that the purpose of visiting the site that Sunday morning was wholly private”.

“This was a summary dismissal. It was not a dismissal on notice. Whether conduct warranted summary dismissal is a relevant matter going to harshness under section 387(h) of the FW Act.

It does not automatically follow that employee misconduct or failure of duty warrants summary dismissal. The proportionality of the summary nature of [the applicant’s] dismissal must be weighed against the gravity of his misconduct. Summary dismissal is only available to an employer where the misconduct or failure of duty is of such a serious nature that it strikes so fundamentally at the heart of the employment relationship that the continuation of employment for any future period of time, no matter how brief, would be incompatible with the contract including the duties of trust and confidence”.

“Moreover, where an employer dismisses an employee on notice but not summarily the employer has one of two options; either it can require the employee to work out their notice or (alternatively) pay the employee and amount of notice in lieu.

“Whilst the errors of judgment by [the applicant]…were, in cumulative effect, serious, I consider that summary dismissal was not reasonably open. Whilst neglect of safety rules or a lack of safety awareness is serious in any workplace context, some conduct strikes more fundamentally at the employment relationship than others. It is only conduct that is serious misconduct that gives rise to summary dismissal”.

“Considering the circumstances overall, the dismissal was not unfair but summary dismissal was. The dismissal is harsh on that ground, but that ground only. [The applicant] should have been dismissed on notice. In the circumstances, that would have been five weeks’ notice or payment in lieu”.

Summary and outcome

So far, the DP has found the applicant was not unfairly dismissed, however found that the applicant’s conduct was not serious enough to have his job removed without the requisite period of notice (in this case five weeks).

However, the DP was far from impressed by the applicant stating:

The post dismissal conduct involved [the applicant] deliberately and in a calculated manner seeking to damage [the company’s] interests as retribution for his dismissal. The conduct involved:

  • threatening managers and the company in the hours that followed dismissal. Even after having slept on the matter overnight, he repeated his warning of retribution the following day in even more uncouth terms;
  • posting on Jamieson’s Facebook page opinions about [the company’s] products and services that were intended to warn off existing and new customers from doing business with the company; and
  • transposing to his Facebook page J[the company’s] logo and continuing to repeat his opinions about the company and its products.

“Such conduct went beyond an expression of angry disappointment in the heat of the moment. It occurred over weeks and was calculated. Having an external customer-facing element, it demonstrated a continuing lack of judgment on [the applicant’s] part. It was provocative and carried the risk of potential damage to the very business he is now seeking compensation from”.

This is where the DP became “creative”:

“I have found that [the applicant’s] materially contributed to the dismissal by serious errors of judgement including on safety issues that gave rise to dismissal for a valid reason, but which fell just short of conduct warranting summary dismissal.

“I consider a 20% reduction (one week) appropriate on account of this misconduct. I do not consider such a discount to be a double punishment (having found that the misconduct formed a valid reason for dismissal). A compensation order is not an order for payment of a sum of due under the FW Act or an award. Whilst the order I make bears a direct relationship to my conclusion that the absence of notice rendered the dismissal harsh, section 392(3) of the FW Act provides that the Commission “must” reduce the amount of compensation by an appropriate amount on account of contributory misconduct.

“The compensation order will be for an amount equivalent to five weeks in lieu of notice discounted by two weeks on account of pre and post dismissal misconduct and one week on account of the earnings in alternate work during this period.

“The amount of compensation payable by [the company] that I consider appropriate will be two weeks’ pay”.

All that time and expense (for both the company and the applicant) in prosecuting this unfair dismissal claim for two week’s pay. That has got to hurt.