George Moskou v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology. (U2015/9631) [2015] FWC 8608. CRIBB. 15 DECEMBER 2015

 

Warning: do not read if offended or squeamish about bodily functions!!!

 

Mr Moskou was summarily dismissed on Monday 13 July 2015 for misconduct. The nature of the incident was that Mr Moskou had attended at the medical clinic at 224 Springvale Road Glen Waverley and that he had defecated in the car park and had left faecal matter and soiled toilet paper all over the car park.

 

It was stated that Mr Moskou was dismissed because he had defecated on a client’s premises and then failed to clean up/or make a serious attempt to clean up; he had failed to notify his employer so that remedial action could be taken and that he was not frank when the issue was raised with him.

 

Mr Moskou’s defence was that the dismissal was disproportionate to the gravity of the conduct. That Mr Moskou had attempted to clean up at the clinic, had tried to contact his immediate supervisor, and had not denied that the incident had occurred.

 

As part of his evidence, Mr Moskou provided a letter from Dr Cenap, dated 11 July 2015, which stated that Mr Moskou had gastroenteritis and that Mr Moskou could not wait to find a public toilet whilst working. The company disagreed that Mr Moskou had no other option but to defecate in the client’s car park. It did not accept the medical evidence that was provided by Mr Moskou at the time of his dismissal. This was on the grounds that the medical evidence referred to “medical condition” and not to gastroenteritis which was Mr Moskou’s reason for having to defecate at the medical clinic.

 

The Commissioner found:

 

“…I accept that… when Mr Moskou was at the medical clinic in question, he had an urgent need to defecate that he could not control. There is no evidence before me that Mr Moskou had wilfully used the medical clinic’s car park as a toilet. Rather, Mr Moskou appeared to still be embarrassed and uncomfortable when giving evidence about what had happened, some 3 months after the incident occurred. I accept the contention made on behalf of the Applicant, that no normal person would choose to do what Mr Moskou did, if there was either no need or if there was another viable option (i.e. a public toilet). Therefore, I find that Mr Moskou had no other option, other than to defecate in the medical clinic’s car park, as he had an urgent need to defecate.”

 

It was contended, on behalf of Mr Moskou, that he had tried to clean up in the dark and that he had attempted to throw away the rubbish. It was acknowledged that it was not a very elegant solution to the situation but it was argued to not be completely unreasonable. The Applicant stated that it was not indicative of misconduct.

 

Mr Moskou’s evidence in relation to this issue was that:

 

  • During the day of 5 July 2015, he had been feeling unwell.
  • As he was walking back to the car after checking the night box at the clinic in question, he needed to defecate desperately. He said that he had no choice.
  • He had gone around the corner of the medical clinic to a dark section of the car park.
  • He had tried to clean it up as much as he could with tissues from his vehicle. He had also called his partner to bring some toilet paper, which she did.
  • He had defecated on the gravel/asphalt and the stools were not solid. He had thrown the tissues into the garden bed and washed his hands under a tap.
  • He had left the soiled tissues and toilet paper on the ground and a few probably in the garden bed.
  • He had left the soiled toilet paper on the clinic’s premises in an open area for someone else to pick up. He had not gone and got a plastic bag and put the soiled toilet paper in the bag.
  • He should have picked up the soiled toilet paper and he could have washed down the area.
  • It was just an accident. He had no idea who was going to clean up his mess.

 

The Commissioner concluded:

 

“In all the circumstances of this matter…on balance, I find that Mr Moskou’s summary dismissal was harsh. This is on the basis that, although the misconduct was serious, it was not serious misconduct and the misconduct was not so serious as to warrant dismissal without notice. There was a valid reason for the dismissal and the process was procedurally fair. However, summary dismissal in these circumstances was harsh and disproportionate. What was appropriate was dismissal with notice.

“As a consequence, I consider that Mr Moskou’s summary dismissal [to be] unfair…”

“The company’s view was that reinstatement is not appropriate due to a breakdown in the company’s confidence and trust about the employment relationship. I have carefully considered the issue of reinstatement and I find, in all of the particular circumstances of this matter, that reinstatement is inappropriate.

“In all of the circumstances, I have decided to make an order that Mr Moskou be paid compensation of one weeks’ pay in lieu of notice”.

 

Commentary

 

I can’t help feeling sorry for the applicant in this matter. When you’ve got to go, you’ve got to go. I suppose this is what the company ultimately decided – that he had to go (tic).

 

And to go to all that trouble, embarrassment and expense for one week’s pay, well…

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.