Monday, September 10, 2012

We Need Common Sense to be Common in our Industrial Courts

Two significant industrial cases have been decided in the past few weeks that should give employers heart and reassure workers that sanity can prevail in our IR jurisdictions.

The High Court ruled this week that Bendigo TAFE was not in breach of the Fair Work Act 2009 (the Act) when it took decisive action against a union official by standing him down on full pay and suspending his internet access due to allegations of serious misconduct.

In the first instance a Federal Court judge was satisfied on the balance of probabilities that the TAFE CEO stood down the complainant on the same justification as would have applied to any staff member who was not a union official. The complainant had reportedly used the company email system to allege that unnamed parties had engaged in potentially fraudulent action in respect of an upcoming audit. The CEO took issue with the fact that serious allegations were raised inappropriately with other staff and not with management. A claim of adverse action against the union official was dismissed. The complainant subsequently appealed to the Full Bench of the Federal Court which overturned the original decision.

There was clearly a huge implication of this decision for employers; namely that union officials, regardless of conduct could now become a protected species under the Act because of the provisions prohibiting adverse action against staff in representative roles or those engaging in lawful industrial activity. The TAFE was granted leave to take the decision to the High Court which has come out unanimously in support of the original decision. It is regrettable that companies must incur such substantial expenses to test these legislative provisions at law or be prepared to settle ahead of public hearings in FWA or court proceedings in the Federal or High Courts.

There are parallels between this case and a far older case I encountered early in my career as an EEO practitioner. That case involved a food manufacturer which dismissed a staff member with a psychiatric disability for aggressive and threatening conduct. The terminated staff member sought relief under unlawful termination legislation citing dismissal on a protected attribute. However in that instance, the tribunal was satisfied that the company would have taken the same action against any staff member who compromised the safety of other staff and that the illness, whilst unfortunate, was not a factor in the decision to terminate.

We know that quite unacceptably, staff still face discrimination in Australia on prohibited grounds of discrimination and we must continue to fight against unlawful disadvantage and harassment on protected attributes. However we must also set boundaries and educate staff to ensure safe and productive workplaces. The mere fact of a staff member belonging to any minority group should not afford them special protections if they disrupt safety or otherwise engage in misconduct.

In a second noteworthy case, an employer was found not to have unfairly dismissed a senior IT consultant who was found on the balance of probabilities to have attempted hacking into his manager's email account after being 'tipped off' that the manager was investigating him for inappropriate behaviour. In this interesting case, the IT consultant had allegedly been a party to a very unsavoury conversation instigated by another staff member about a female colleague and a male senior manager. The complainant had clearly been given the tools of trade and would normally have had clearance to execute highly sensitive tasks in the normal course of his work day. It was acknowledged he had not instigated the conversation but because he had not opposed it and had responded 'lol' (a sms acronym for 'laugh out loud') this was tantamount to inexcusable involvement. In a very thorough decision, the Commissioner ruled the complainant had 'probably' hacked into his manager's email to see what the manager had accumulated 'on him' as evidence. The common sense message?

If it follows, as I have heard argued on occasion, that we give people tools of trade at work so have no right to restrict the tools' use, what happens at a butcher shop when employees are given very sharp knives to meet the inherent requirements of the job? Does that confer an automatic 007 Licence to Stab!?

In our civilised democratic country, no employer should have an indiscriminate right to terminate staff on irrelevant characteristics or should a 'punishment' be disproportionate to 'the crime'. No employee, including one in a legitimate representative role should use their position to abuse the power and privilege of their office. No skilled IT person should have unfettered access to anything and everything they have the expertise to explore. In each of these cases, it's the context that determines any wrongdoing, not the job description.

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