Termination without notice valid?

An accountancy firm manager’s appeal for unfair dismissal has failed after he secretly attempted to sell part of his employer’s business to Macquarie Bank for a $5 million personal   profit. Andrew Baird (‘the Applicant’) sought $122,512.50 in liquidated damages from Crowe Horwath (Aust) Pty Ltd (‘the Respondent’) contending that his dismissal constituted contending that his dismissal constituted a contravention of the Fair Work Act 2009 (Cth) (‘the Act’).

The Respondent contended that Mr Baird’s conduct constituted serious misconduct, warranting dismissal without notice under section s123(1)(b) of the Act. This section provides that an employee terminated “because of serious misconduct” is not covered by the division within the Act relating to notice of dismissal.

The Applicant’s alleged misconduct involved:

  • Soliciting clients from the Respondent;
  •  Convincing employees from the Respondent to join a new business venture; and
  •  Meeting with Macquarie Capital’s executive director to discuss the sale of part of the Respondent’s business.

Furthermore, the Court heard that the Applicant had prepared a business proposal for Macquarie which valued his employer’s business at $315 million, the potential to make a profit of $100 million and that he sought to make $5 million for both himself and his colleague.

Judge Wilson found that the Applicant’s plan to profit at the expense of his employer breached his fiduciary obligation to his employer, which required him to act in the bests interests of the Respondent rather than his own self-interest.

The Court also acknowledged that soliciting both company clients and employees reinforced that the Applicant’s actions were motivated by self-interest.

For further information on workplace misconduct and employee rights under the Fair Work Act 2009 (Cth) please contact Nick Stevens, Megan Cant or Jane Murray.

Published July 2016

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