Thirteen Days Between Conduct And Dismissal Renders Summary Dismissal “Harsh And Unreasonable”

The Fair Work Commission (‘FWC’) has held Note Printing Australia’s (‘the Employer’) summary dismissal of an employee, Mr Hemmingson, “harsh” and “unreasonable” primarily due to a delay between the conduct warranting dismissal, and the dismissal itself.

On 21 July 2016, Mr Hemmingson sent a series of emails that contained the Employer’s confidential and sensitive information pertaining to bank notes from his work email account to a personal email account. As a result, Mr Hemmingson’s employment was terminated without notice for serious misconduct on 4 August 2016.

The FWC upheld (in part) the Employer’s submission that, in sending confidential and sensitive information, Mr Hemmingson had breached the Employer’s Acceptable Use of Technology Policy and consequently breached aspects of both the Employer’s Technology Policy and Code of Conduct.

Mr Hemmingson contended, and the FWC accepted, that Mr Hemmingson sent the relevant emails in order to demonstrate that a colleague had been omitted from the sender list in particular emails, and accordingly did not have sufficient seniority to be promoted to Senior Printer, a position that Mr Hemmingson had been denied.

Given the nature of Mr Hemmingson’s breaches of policy, and the sensitive and confidential information that he had left “susceptible to hacking”, the FWC held that there was a “valid reason” for dismissal within the meaning of the Fair Work Act 2009 (Cth) (‘FW Act’). Notwithstanding, when assessing each criterion to determine whether the dismissal was harsh, unfair or unreasonable pursuant to section 387 of the FW Act, Commissioner Cribb raised two other relevant matters that rendered Mr Hemmingson’s dismissal both “harsh” and “unreasonable”. The first was the Commissioners acceptance that Mr Hemmingson’s breaches of policy were an error of judgement rather than a deliberate effort to breach policy.

Secondly, the Commissioner held that the major factor rendering Mr Hemmingson’s dismissal “harsh” and “unreasonable” was the length of time taken between the conduct warranting termination and the termination itself. Accordingly, the Commission held that Mr Hemmingson’s breaches could not have been sufficiently serious to warrant summary dismissal, given the time taken for the Employer to decide that summary termination was the appropriate outcome and given that Mr Hemmingson was permitted to continue work as normal during the intervening period.

In considering an appropriate remedy, Commissioner Cribb deemed reinstatement inappropriate in light of Mr Hemmingson’s conflict with colleagues. The Commissioner considered compensation appropriate, with the quantum to be decided at a later date pending further information, regarding Mr Hemmingson’s weekly pay and evidence of his attempts to gain other employment.

If you have any questions relating to disciplinary or termination processes please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray.

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