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Employees behaving badly: Is common sense winning the day?

28 February 2019

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has upheld an employer’s decision to dismiss an employee for inappropriate online conduct, while also raising issues with the employer’s investigation process.

A snapchat brainsnap

The sacked employee, Mr Fussell, was a train guard. During a Snapchat discussion with a female colleague on a Sunday evening, Mr Fussell was alleged to have told her that he had been drinking, was feeling drunk and words to the effect “When I am drunk I send naughty images”.

The female guard stated that she then responded to Mr Fussell with an express request that he not send any such images. A very short time later, Mr Fussell replied that he had tried Viagra and sent her a photo of his erect penis.  Mr Fussell then shortly sent another message saying “S**t don’t look. I’m so sorry”. He then sent her a picture of his tattoo and said that he had meant to send her that photo. 

Mr Fussell’s employer, Transport for NSW, suspended his employment.  Then, following a lengthy investigation, dismissed him for breaching its Code of Conduct and policies regarding social media and bullying and harassment.

The FWC upheld the employee’s dismissal, finding that while Mr Fussell’s conduct “may have been a one-off lapse of judgment” and that there were flaws with the employer’s process in putting the allegations to him, his conduct in sending the photo and messages “was at the extreme outer limit of offensiveness” and justified his dismissal without notice. Deputy President Bull went on to state that “no amount of regret or apology can lessen the seriousness of the incident”.

Mr Rodney Fussell v Transport for NSW T/A Transport for NSW [2019] FWC 1182 (22 February 2019): https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc1182.htm

Take-aways

There are two key take-aways from this decision:

  • Firstly, the Fair Work Commission will generally take a common sense approach in assessing whether an employee’s dismissal is fair – including taking personal responsibility into account;

  • Secondly, an employee’s own conduct is not a “silver bullet”. An employer must still ensure it adopts a fair and proper process, because dismissals can (and do) come unstuck where this is not done.

If you have any questions about this decision, please contact Sina Zevari.

Further Reading

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