Another employer fails to establish serious misconduct

Another employer has failed to satisfy the Fair Work Commission on the issue of serious misconduct.

In this case , the Applicant was an internationally renowned rifleman and IT Manager. In July 2015, a friend of the Applicant attended the carpark of the Applicant’s workplace with the intention of discussing a rifle part with him.  Critically, the Applicant used his security pass to give his friend access to the carpark.  Whilst there, the friend revealed she had brought her high powered rifle with her in the car.

A member of the public witnessed the Applicant and his friend with the rifle in the carpark and reported the event to the police. The police attended the carpark and found the Applicant and his friend with the unarmed rifle.  Although his friend was charged with an ammunition related offence, the Police did not charge the Applicant.

Following the incident, the Applicant was stood down pending an investigation. A month later, which included a period of pre-arranged annual leave, the Applicant was terminated for serious misconduct.

The Applicant made an unfair dismissal claim and Commissioner Cambridge held that the conduct of the Applicant did not meet the threshold for serious misconduct. He found:

“The employer’s fundamental reason to dismiss the applicant was the alleged misconduct of the applicant which involved him either, permitting [his friend] to enter the car park in the knowledge that she had the firearm in her car, or alternatively, allowing her entry to the car park without knowledge of the firearm, but then subsequently not acting with reasonable and timely concern for the circumstances. Neither of these formulations of the alleged misconduct, when properly considered, can be held to have involved a wilful and deliberate attack upon the employment relationship, such as would be necessary to justify a dismissal without notice, as opposed to dismissal with the requisite notice.”

The Applicant was awarded $8,616 in compensation.

Lessons for Employers

The Fair Work Commission has set a very high threshold for serious misconduct. This case emphasises the importance of meeting that threshold, otherwise dismissal would need to be with notice.

Disclaimer: The information contained this article is general and intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Aitken Legal does not accept liability for any errors it may contain. Liability limited by a scheme approved under professional standards legislation.