Kostantina (Deana) Hatzisevastos v Iron Mountain Pty Ltd  FWC 770 (U2014/9468) SENIOR DEPUTY PRESIDENT HAMBERGER. SYDNEY, 4 MARCH 2015
In a decision that bodes well for employers having promoted and enforced their policies, the applicant’s receipt of gifts was found to be in breach of the company’s gifts policy; leading to the applicant’s summary dismissal.
The respondent has a Code of Ethics and Business Conduct. The applicant was given a copy of this policy when she commenced employment with the respondent. This policy includes the following:
‘GIFTS AND ENTERTAINMENT
Exchanging gifts with customers is a common way to express appreciation. However, gifts and entertainment should never be given in an attempt to influence business decisions — even where it’s a standard business practice or local custom. Always consult your local Gifts and Entertainment Policy before offering or accepting anything of value, including gifts, favours, tickets to entertainment events, invitations to travel etc.
“The local gifts and entertainment policy for Australia includes the following:
‘The Company selects products and services on the basis of price, quality and service. The Company expects its customers to purchase its products and services on the same basis. All Company business transactions must be transparent, impartial, objective and free of outside influence. Directly or indirectly giving and/or receiving modest gifts, favours, entertainment, and hospitality is often appropriate, a cultural expectation, and used to strengthen business relationships. However, gifts, favours, entertainment, or hospitality may not be accepted or given if they violate any law or regulation industry code and/or Company Policy; are conditional; and/or obligate or appear to obligate the recipient or Company to provide an improper business advantage.”
The policy explicitly states that ‘covered parties’ must not offer, accept, or receive directly or indirectly a gift, favour, entertainment, or hospitality if it has a value in excess of $100 AUD.
“… a gift, favour, entertainment or hospitality that has a value greater than $100 AUD or the local equivalent of $100 AUD, or that could influence or be reasonably perceived influence the covered party’s judgement must be immediately reported to Human Resources or the Company’s VP – Compliance and General Counsel, and returned to the donor as tactfully as possible, or where returning the gifts is not possible or appropriate, the gift should be property donated to charity.”
In finding in favour of the respondent employer, the SDP decided:
It is not seriously in contention that the applicant was guilty of misconduct. She breached the respondent’s policies governing the acceptance of gifts on two separate occasions. These policies are very clear, and the applicant had received recent training in them. The breaches were not minor or technical in nature. The policies themselves are clearly important to the respondent and are lawful and reasonable. In particular the restrictions placed on the receipt of valuable gifts by the respondent’s employees are designed to ensure that the respondent’s business dealings are ‘transparent, impartial, objective and free of outside influence.
“The respondent was well within its rights to consider any breach of its Code of Ethics and related policies as a serious matter. The applicant breached the company’s gift policies not once but twice. Nor were they minor or technical breaches. She had no reason to plead ignorance of those policies. She had received training in them. The training was well written and was designed to leave employees no doubt about their obligations. The applicant’s sales record is of limited relevance – she was dismissed for misconduct – not poor performance. I do not consider any of the other factors referred to by the applicant as in any way outweighing the seriousness of her misconduct.
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