Conduct

The Fair Work Commission does not remain in the position of the employer, but decides what it would do if it were in the employer's position. [2] The issue the Commission must address is whether there was a just cause for dismissal. [3] The test is not whether the employer, after a full investigation, believed on reasonable grounds that the employee was committing the act. [4] The Commission must decide whether the act occurred on the basis of the evidence before it. [5] Inconsistent treatment of past similar acts by other employees in the workplace is a potentially relevant issue. [6] Impunity of an employee can be misconduct and a just cause for dismissal. [7] However, impunity does not automatically make the dismissal of an employee unjust. [8] In the circumstances of a particular case, a single mindless and dishonest act cannot always justify summary dismissal. [9] An employee's failure to comply with lawful and reasonable instructions of the employer can be a just cause for dismissal. [10]

Fair Work Rules 1. 07 Definition of Gross Misconduct 11] Gross misconduct is conduct that is willful or deliberate and incompatible with the continuation of the contract of employment. [12] It is also conduct that poses a serious and imminent danger to the health or safety of an individual or to the reputation, viability or profitability of the employer's business. [13]

Gross misconduct includes theft, fraud, assault, sexual harassment, intoxication at work, and refusal to follow lawful and reasonable instructions in accordance with the employment contract. [14]

When gross misconduct is alleged, the test for a just cause for dismissal remains unchanged. It remains to be asked whether the cause is "sound, defensible or well-founded". [15] Just cause for dismissal does not require conduct that amounts to a repudiation of the employment contract. [16]

When an employee is dismissed without notice (summary dismissal) for gross misconduct, it may be found that the dismissal was harsh because the summary dismissal was disproportionate, even though there was a just cause for dismissal.

Where the conduct involves gross misconduct, the principles established in Briginshaw v. Briginshaw [18] may be relevant:

Serious misconduct

While the standard of proof remains the balance of probabilities, "the nature of the issues will necessarily affect the process by which reasonable satisfaction is reached."[19] And that satisfaction "cannot be derived from imprecise evidence, vague testimony, or implicit inferences," nor from subtle or impermissible evidence or circumstances that "lead to a positive conclusion."[20] The Briginshaw principle does not raise the standard of proof beyond the "balance of probabilities."[21] The strength of evidence required to establish a fact on the balance of probabilities "may vary with the nature of what is sought to be proved."[22] "Only in exceptional circumstances will an employer have the right to extend its supervision over the private activities of employees."[23] Out-of-hours conduct must be related to the employment relationship.[24] Rose v Telstra[25] has reviewed relevant court decisions on out-of-hours conduct and provided the following summary:

"Conduct that is objectively likely to cause significant damage to the employee-employer relationship; Conduct that is prejudicial to the employer's interests; Conduct that is contrary to the employee's duties.

When involving out-of-hours conduct, an employer must have strong evidence to support its case, rather than merely alleging that the conduct has some effect on the employer's reputation or jeopardizes the employee's ability to perform his or her job.

Furthermore, There must be a connection between the criminal act and the employee's employment.[29] However, if an employee is convicted of a serious crime and is serving a sentence, and therefore unable to attend work for a significant period of time, the law allows for termination of employment contracts for setbacks.[30] Generally, a dismissal for fighting is not considered cruel, unjust or unreasonable if there are no extenuating circumstances.[31] These include:

The circumstances in which the altercation occurred, such as whether the fired employee was provocative or in self-defense.

The fired employee's previous employment history, including his/her employment history.

[32]

Out of hours conduct

The principle is that the committee must take into account all the circumstances surrounding the case, and it is clear that it must not simply judge who was the perpetrator. [33]

If employees' actions and abilities affect the safety and welfare of other employees, the committee can recognize it as a legitimate reason for dismissal.

[35] Fair Labor Regulations 1. 07 (defined serious illegal acts) may also be related when dealing with occupational safety and health (OHS) violations that make up serious illegal activities. [35]

• The type of related acts is not only intentional, malicious, or intentional, but may be an act that can be dangerous or dangerous to other workers in the workplace [36] 。
• The committee can consider the following issues when determining whether safety violations occurred:
• Violation / seriousness of incident

Company policy that determines safety procedures and consequences of violations

Related OHS training by employers

Was the case / violation a singl e-shot or repeated?

Fighting or assault

[37] The staff is the boss and whether or not it is expected to show the model and teach. [37]

Serious and intentional violations are often the legitimate reasons for dismissal, even if not normal.

• However, the certification that employees did not follow the policy or procedure do not mean that the dismissal is cruel, unreasonable, or irrational. In any case, all situations must be considered.
• If there is a widespread policy violation without the employer, this is a serious decision to dismiss it and not be cruel, unreasonable or unreasonable. [40]
• Losing the trust and trust in the employee's ability to perform duties alone is not enough to admit that there is a legitimate reason for dismissing employees. [41] Sufficient evidence and reasons to support trust and trust.

Employers fired employees due to poor delinquency to team members, customers, and bosses and poor attitudes.

Effect on the safety and welfare of other employees

The act of employees found that the dismissal had a legitimate reason. < SPAN> Whether or not the employee was a supervisory job. [32]

The principle is that the committee must take into account all the circumstances surrounding the case, and it is clear that it must not simply judge who was the perpetrator. [33]

If employees' actions and abilities affect the safety and welfare of other employees, the committee can recognize it as a legitimate reason for dismissal.

[35] Fair Labor Regulations 1. 07 (defined serious illegal acts) may also be related when dealing with occupational safety and health (OHS) violations that make up serious illegal activities. [35]

• The type of related acts is not only intentional, malicious, or intentional, but may be an act that can be dangerous or dangerous to other workers in the workplace [36] 。
• The committee can consider the following issues when determining whether safety violations occurred:
• Violation / seriousness of incident
• Company policy that determines safety procedures and consequences of violations
• Related OHS training by employers

Breach of company policy

Was the case / violation a singl e-shot or repeated?

[37] The staff is the boss and whether or not it is expected to show the model and teach. [37]

Serious and intentional violations are often the legitimate reasons for dismissal, even if not normal.

Loss of trust and confidence

However, the certification that employees did not follow the policy or procedure do not mean that the dismissal is cruel, unreasonable, or irrational. In any case, all situations must be considered.

Case examples

Valid reason due to conduct

Poor attitude and behaviour

If there is a widespread policy violation without the employer, this is a serious decision to dismiss it and not be cruel, unreasonable or unreasonable. [40]

Losing the trust and trust in the employee's ability to perform duties alone is not enough to admit that there is a legitimate reason for dismissing employees. [41] Sufficient evidence and reasons to support trust and trust.

Various conduct issues – lateness, not wearing personal protective equipment

Employers fired employees due to poor delinquency to team members, customers, and bosses and poor attitudes.

The act of employees found that the dismissal had a legitimate reason. [32]

Recklessness and carelessness in causing forklift accident

The principle is that the committee must take into account all the circumstances surrounding the case, and it is clear that it must not simply judge who was the perpetrator. [33]

If employees' actions and abilities affect the safety and welfare of other employees, the committee can recognize it as a legitimate reason for dismissal.

[35] Fair Labor Regulations 1. 07 (defined serious illegal acts) may also be related when dealing with occupational safety and health (OHS) violations that make up serious illegal activities. [35]

Social media – Facebook

The type of related acts is not only intentional, malicious, or intentional, but may be an act that can be dangerous or dangerous to other workers in the workplace [36] 。

Drinking alcohol while on lunch break

The committee can consider the following issues when determining whether safety violations occurred:

Violation / seriousness of incident

Drinking alcohol while on lunch break

Company policy that determines safety procedures and consequences of violations

Related OHS training by employers

Was the case / violation a singl e-shot or repeated?

Dishonesty in disciplinary interview

[37] The staff is the boss and whether or not it is expected to show the model and teach. [37]

Serious and intentional violations are often the legitimate reasons for dismissal, even if not normal.

However, the certification that employees did not follow the policy or procedure do not mean that the dismissal is cruel, unreasonable, or irrational. In any case, all situations must be considered.

Transmission of pornographic emails

If there is a widespread policy violation without the employer, this is a serious decision to dismiss it and not be cruel, unreasonable or unreasonable. [40]

Losing the trust and trust in the employee's ability to perform duties alone is not enough to admit that there is a legitimate reason for dismissing employees. [41] Sufficient evidence and reasons to support trust and trust.

Dishonesty – co-worker stealing

The employer fired employees because of the lack of delinquency and poor attitude toward team members, customers, and bosses.

The act of employees found that the dismissal had a legitimate reason.

The employee had a long history of performance and behavioural issues including absenteeism, failure to comply with OHS and other company policies, and lateness. The employer had given numerous warnings and conducted several counselling sessions.

Breach of policy – dress code

The employee's misconduct was found to be a justifiable reason for dismissal.

IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 (Boulton J, O'Callaghan SDP, Ryan C, 9 September 2011), [2011) 212 IR 141].

An employee was dismissed for colliding a forklift with another forklift. Given the seriousness of the conduct and the potential health and safety risks from the accident, it was found that there was justifiable cause for dismissal.

Breach of policy – gambling

Notes However, despite being found to have a justifiable reason for dismissal, the employer was wrong to accuse the employee of deliberately causing the accident, and therefore the dismissal was found to be cruel and unjust.

The employee made negative and threatening comments about his colleagues on Facebook. The Commission found that threatening other employees is a serious matter and has no place in any workplace. The manner of the threat and the words used were sufficient grounds for the Respondent to dismiss the Applicant for gross misconduct.

Selak v. Woolworths Limited [2008] AIRCFB 81 (Watson VP, Cartwright SDP, Foggo C, 8 February 2008), [(2008) 171 IR 267].

Serious safety breach – forklift

An employee, a store manager, was dismissed for drinking two beers at lunchtime. The employer had a clear policy of not drinking alcohol during working hours. This was held to be a valid reason for dismissal.

The appeal was dismissed in PR936856 (AIRCFB, Harrison SDP, Harrison SDP, Ives DP, Bacon C, 27 August 2003), [(2003) 126 IR 461].

Serious safety breach – rail

An employee was found to have been drinking alcohol during his lunch break and was dismissed. The breach of policy was held to be a valid reason for dismissal.

However, having regard to recent policy changes, inconsistent enforcement of the policy and the employee's length of service, it was held that dismissal was harsh in all the circumstances.

Improper use of work information

Streeter κατά Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 Ιανουαρίου 2008), [(2008) 170 IR 1].

The employee had sexual negotiations in front of a colleague in a hotel room. The colleague appealed to the employer for her actions. After several interviews, the employees acknowledged that there was such an act. The All Court of Court determined in the appeal of a majority vote that the dishonest attitude of employees during the survey was a legitimate reason for dismissal.

Fighting/assault

It is reasonable that the All Court of Terstra has conducted a survey, as the entire court may have hindered the work due to the activities of employees and may hinder business in the future. did. In such a situation, the questions that Telstrora went to employees was reasonable. The All Court is investigating the employee's activities, despite the fact that the employee's activities were essentially personal so that Terstra was able to decide and take appropriate measures to address difficult situations. , The employees judged that they had to be frank against Terstra. The dishonest attitude of the employees under the investigation was that Terstra was not convinced that employees were sincere in the future. Thus, the trust relationship between Terstras and employees was destroyed.

Breach of policy – offensive email

Employees have accessed pornography materials through a business e-mail account in violation of the company's policy. This was a legitimate reason for dismissal.

Note: The lack of fairness in the complaint processing procedure has eventually determined that the dismissal is cruel, unfair, and unreasonable.

Woodman v THE HOYTS CORPORATION PTY ​​LTD, PR906309 (Aircfb, Giudice J, Watson SDP, Grainger C, 11 JULY 2001), [(2001) 107 IR 172].

Failure to follow lawful and reasonable directions

The employee was fired because colleagues allowed their products to bring back the product without paying the product, and that they lied to the management when asked about the event. Despite the size of theft, concealment was a serious illegal act and a legitimate reason for dismissal.

Note: Eventually, the deficiency of the dismissal process was determined to have been severe.

Woolworths Limited (T/as Safeway) v Brown, PR963023 (Aircfb, Lawler VP, LLOYD SDP, Bacon C, 26 September 2005), [(2005) 145 IR 285].

Employee conflict

Employees were fired as a butcher because they refused to remove eyebrows during work.

Employees have refused to follow the employer's legal instructions, which was a legitimate reason for dismissal.

NOT a valid reason due to conduct

Failing to comply with restricted duties

PR928970 (AIRCFB, Giudice J, Lawler VP, Foggo C, 19 March 2003) permission to appeal was refused [(2003) 124 IR 217].

An employee, who was a manager in a casino, was dismissed for gross misconduct for placing bets on the TAB within the casino premises. The dismissal was held to be for cause.

Swearing/bad language

Note: Although the dismissal was found to be for cause, it was held to be harsh in all the circumstances.

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243].

Failing to report other employee's dishonesty

An employee was dismissed for breaching health and safety policies when he placed his hands, head and torso under an unstable load with a forklift. This was held to be for cause.

The employee was dismissed for health and safety violations because the rail car on which she was working became a work area. The employee's conduct was such that it endangered or endangered other employees in the workplace, which was found to be a valid reason for dismissal.

Fighting/assault

Notes The reasons for dismissal in the notice of dismissal and disciplinary meeting were unclear and ineffective, and therefore ultimately the dismissal was harsh.

The employee was dismissed for breaching the employer's code of conduct by asking a colleague to look into her ex-husband's financial affairs.

Shortcomings in reporting an injured patient

This breach was found to be a valid reason for dismissal.

The employee was dismissed for gross misconduct for assaulting another employee. Committee fights in the workplace are usually a valid reason for dismissal because employers have the right to have an anti-fighting policy and to ensure compliance with that policy by firing employees who fight.

Allegations of misappropriation and fraud

Anderson v Thiess Pty Ltd [2015] FWCFB 478 (Ross J, Hatcher VP, Simpson C, 30 January 2015).

An employee was dismissed for sending offensive e-mails in breach of the employer's workplace policy. This was found to be a just cause for dismissal, particularly as the e-mails were denigrating and offensive to members of the Muslim faith. Leave to appeal was refused in PR928970 (AIRCFB, Giudice J, Lawler VP, Foggo C, 19 March 2003) [(2003) 124 IR 217].

Alleged failure to follow employer's lawful and reasonable direction

An employee, who was a manager working in a casino, was dismissed for gross misconduct for placing bets on the TAB within the casino premises. The dismissal was found to be for cause.

Note: Although the dismissal was found to be for cause, it was found to be harsh in all the circumstances.

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243].

Criminal matters – theft of alcohol

An employee was dismissed for breaching health and safety policies when he placed his hands, head and torso under an unstable load with a forklift. This was held to be a just cause for dismissal.

An employee was dismissed for breaching health and safety policies when the rail car on which he was working became his work area. The employee's conduct was such as to endanger or put at risk other employees in the workplace and was held to be a just cause for dismissal.

Employer used illegally obtained evidence to support allegation of theft

Notes The reasons for dismissal in the notice of dismissal and in the disciplinary meeting were unclear and ineffective and therefore ultimately the dismissal was harsh.

An employee was dismissed for breaching the employer's code of conduct by asking a colleague to look into her ex-husband's financial affairs.

Refusal to follow company policy

This breach was held to be a just cause for dismissal.

An employee was dismissed for gross misconduct for assaulting another employee. Committee fighting in the workplace is usually a valid reason for dismissal because an employer has the right to have an anti-fighting policy and to ensure compliance with that policy by dismissing employees who engage in fighting.

Anderson v Thiess Pty Ltd [2015] FWCFB 478 (Ross J, Hatcher VP, Simpson C, 30 January 2015).

An employee was dismissed for sending an offensive email in breach of the employer's workplace policy. This was found to be a valid reason for dismissal, particularly as the email was denigrating and offensive to members of the Muslim faith. Leave to appeal was refused PR928970 (AIRCFB, Giudice J, Lawler VP, Foggo C, 19 March 2003) [(2003) 124 IR 217].

Loss of trust and confidence

An employee, who was a manager working in a casino, was dismissed for gross misconduct for placing bets on the TAB within the casino premises. His dismissal was found to be for valid reason.

Note: Although just cause was found for dismissal, the dismissal was held to be harsh in all the circumstances.

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (Watson VP, Sams DP, Asbury C, 2 March 2011), [(2011) 207 IR 243].