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Swearing Did Not Warrant Summary Dismissal

The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.

Facts

In essence:

  • On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
  • Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
  • The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?
  • The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
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Misuse of Confidential Information – Evidence relied upon after the fact

In the recent decision of Finemore v CMIB Insurance Services Pty Limited [2016] FWC 8517, an employer successfully relied upon evidence of misuse of its confidential information discovered following the termination of employment, in order to defend itself from an unfair dismissal claim.

The Facts

The Applicant had been employed by the Respondent (a small business employer) for approximately six years, most recently in the role of Account Executive. The Applicant was employed under a written employment contract containing several post-employment obligations including an obligation to preserve the Respondent’s confidential information

On 28 April 2016, the Applicant notified the Respondent that she was resigning her employment, and provided one month’s notice of resignation.  The Respondent accepted the Applicant’s resignation and confirmed the Applicant’s final day of employment would be 31 May 2016.

However, on 3 May 2016, the Respondent discovered that the Applicant had emailed to her personal email address a detailed Excel spreadsheet (along with other confidential files) shortly after submitting her resignation. The Respondent’s directors directed the Applicant to attend a meeting, at which time the allegations were put to her. The Respondent considered the Applicant’s responses to the allegations to be unsatisfactory, and summarily terminated her employment on the ground of serious misconduct.
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