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The dismissal for a wilful misconduct

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How a spoonful of Milo landed Coles in hot water

Wednesday, 19th February, 2014
By Jessica Oldfield 

In today's Workplace Bulletin:
  • Case study: Homes v Coles Group Limited
Dear Reader,

Dismissing an employee for misconduct can be risky. You must understand when dismissal is unlawful.
Your decision to dismiss an employee must be based on defensible and lawful reasons. This means you must be able to show:
  • that the dismissal relates to the employee's capacity or conduct; and
  • that the facts and circumstances constituting the reason for the dismissal can be proven.
If a tribunal, such as the Fair Work Commission (FWC), reviews your decision to dismiss on fairness grounds, it will expect you to justify that dismissal was the appropriate response to the problem. That means, the punishment must fit the crime!
Today, Charles Power is going to take us through a recent case in which the Fair Work Commission considered these things.
Over to Charles…
Jessica Oldfield
Jessica Oldfield
Workplace Bulletin
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Case study: Homes v Coles Group Limited

By Charles Power
Editor-in-Chief, Employment Law Practical Handbook
In Homes v Coles Group Limited T/A Coles Warehouse Edinburgh Parks (2014), the FWC reinstated a worker who was found to have been dismissed unfairly.

The facts of the case are as follows:

Coles Warehouse provided Milo, among other things, in its break room for the staff to consume during their breaks. An employee regularly took some of the Milo home in a container to mix it with his own drinking chocolate, coffee and raw sugar. He would then bring the mix into work for consumption during his breaks. 

On 30 August 2013, management at Coles Warehouse was informed by another worker that the employee had been seen spooning Milo into a container and putting it in his bag.

A security officer searched the employee, and when confronted about the container, the employee said that he had brought it from home. 

Coles Warehouse suspended the employee pending an investigation. 

Eleven days later, management interviewed the employee about the matter. At the interview, the employee confessed that the Milo came from the break room, but said that he had been so shocked when asked about it on 30 August that he had lied about it being his. 

Coles Warehouse dismissed the employee for serious and wilful misconduct, maintaining that he had breached the company's Code of Conduct by taking the Milo and then lying about it. 

Senior Deputy President O'Callaghan said he was satisfied on the evidence that the worker drank his Milo mix only at work and that his general practice was to take it home to prepare the mix. 

He also agreed that the worker had been shocked when interrogated on 30 August, and had more detailed or different questions been asked, "a quite different light may have been cast on the matter". 

"I have concluded that Coles provided the Milo to employees for use at work and that, notwithstanding that in a legal sense, ownership of the Milo became vested with the employees when they took it from the dispenser, consumption of that Milo for personal reasons outside of work would represent misuse and hence misconduct," the Senior Deputy President said. 

He said the evidence clearly indicated that the worker was "using the Milo for the purpose for which it was intended".

"I have concluded that he should not have taken the Milo home but I do not consider that his actions in doing so represented theft or inappropriate behaviour which could form a valid reason for termination of his employment, let alone summary dismissal." 

The Senior Deputy President also found that the worker's response on 30 August was not a valid reason for dismissal, given his "shocked and somewhat confused" state. 

The employee was reinstated and awarded his lost remuneration for the full period between the dismissal and reinstatement. 
Charles Power

Charles Power
Employment Law Practical Handbook

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Serious and wilful misconduct is sometimes relied upon by employers as a basis for terminating employees.  What constitutes serious and wilful misconduct in any number of enterprises will vary depending on the type of operation and the sensitivity of the information with which the relevant person is dealing. Contact LAC Employment Lawyers today to find out where you stand1300 653 844.

Where you are dealing with private and confidential information at any time always ensure that it is dealt with appropriately.  Unfortunately much sensitive information is dealt with by email including where a person is put under pressure by his/her employers over performance-related issues.  It behoves everyone who is sending private and confidential information by email to ensure that it is properly sanitised so that it does not become the basis for termination.  Some companies have very restrictive email policies and private email is considered sufficient reason for termination, particularly where it discloses matters about company operations and policies to others e.g. employment/disciplinary policies.
Serious misconduct is misconduct which is measured objectively. All one needs to do is to show that the conduct was intrinsically serious e.g. assault, fraud, theft, breaches of health and safety regulations, intoxication, any breach of confidentiality, disobedience of lawful and reasonable instruction, disrespect in the workplace, matters associated with the operational viability of the employer's enterprise, the use of indiscriminate email and conduct which by its very nature is pregnant with imminent and serious risk.

Serving Employment Insurance Appellants

CUB 25713 Umpire Decision/A-647-94 Judgment Of The Federal Court Of Appeal- The claimant was absent from work to attend and comply with a court order. He was found to be disqualified due to misconduct as a result of his own insubordination. The umpire found that the board of referees erred in law. The appeal was allowed.
Appellant: Yvon Launière
Date: 1994
CUB 27485 Umpire Decision- Claimant became very ill while on duty, and soiled his clothing. He went home to change his clothing without reporting this to his employer. To have met someone in his state would have caused him embarrassment. To have to explain this situation and to be dismissed for it was found to be excessive punishment. The appeal was allowed.
Appellant: Nirmalan Appadurai
Date: 1995
CUB 37270 Umpire Decision- Claimant worked for the employer as a presser. She had the misfortune of injuring one of her toes on a weekend. It gave her considerable pain and distress. She telephoned the employer on a Monday morning to report that she would be late for work. When she prepared to leave for work, she realized that she would have difficulty walking and more important she would be unable to operate the foot pedals on the pressing machine. She then did not show up at all on Monday or the following day. She spoke with the supervisor by telephone on Tuesday and then telephoned the owner on that evening at which time he informed her that her employment was terminated. The claimant stated that she endeavoured to telephone the employer a second time on Monday to explain her problem but she was unable to get through after two attempts as the line was busy and because of her distress she did not try again. The Umpire found that due to the trauma she had suffered her judgement was affected. The appeal was allowed.
Appellant: Gail Frisk
Date: 1997
CUB 38481 Umpire Decision-The claimant got into an argument with two men on the sky-train and he, along with the others, were ordered off of the train. He claims to have attempted, without success, to call his employer to say that he would be unable to report for work. The umpire found that an unreasonable act or poor judgement may constitute sufficient cause for the dismissal of an employee but those reasons for dismissal do not meet the test of misconduct. The appeal was allowed.
Appellant: Philomeno Bobadilla
Date: 1997
CUB 38774 Umpire Decision- The Claimant was dismissed from his employment for having failed to report for work on three occasions within the period of a week. The Claimant was involved in an electronic monitoring program where he was required to get permission before he was able to leave his residence. On three occasions the claimant attempted but was unable to obtain clearance from the Program and was therefore unable to attend work. The Umpire found that this situation did not involve the element of wilfulness or intent that must be part of disqualification due to misconduct. The appeal was allowed.
Appellant: Scott Eckel
Date: 1996
CUB 45309 Umpire Decision- The appellant had worked at Canadian Tire for two and a half years. He had been working in the automotive department and had difficulty with a new manager of that department who felt that he was too complacent in his work. The appellant then went on a trip to Holland for three weeks and upon his return was dismissed from the automotive department but given a fresh start in the hardware department. In July, he missed three days of work. Although he called in to advise that he was absent on the first two days, he failed to call in on the last. As a result of his failure to do so, he was dismissed. The Umpire said that “although I do not discount that there may be instances where a single failure to call in will amount to misconduct, the failure to do so must demonstrate recklessness approaching wilfulness”. In this case the claimant did call in on two other occasions. This did not show a pattern of recklessness. The appeal was allowed.
Appellant: Derek Vander-Lely
Date: 1999
CUB 46978 Umpire Decision- The claimant took one month's leave to travel to India. He was injured in an accident in India and was not able to travel. He sent a fax to his employer advising he was unable to return due to medical reasons...later he sent a medical certificate stating he was unable to work for a month due to backache and ligament strain...later he sent a second medical certificate. The Umpire could not conclude that a claimant who is kept away from work by injuries and who provides his employer with a series of medical certificates is guilty of misconduct. The appeal was allowed.
Appellant: Kanwaljit Bola
Date: 1999
CUB 47012 Umpire Decision- The claimant is a single father of children of ages 2, 3, 5, 5 (twins) and 13. He was scheduled to work each Monday and Thursday from 7:00 am to 6:00 pm. Because he was without a babysitter the claimant was unable to report to work one day and he instructed a young man with whom he drove to inform the employer of his inability to report. The employer was informed again by the same young man the following day too when the claimant had no option but to remain home with his children. In between the two dates he informed the employer of his problem. It must be conceded that the claimant was in error in not contacting the employer personally and directly by telephone. Notwithstanding, the employer did get notification of claimant's inability to report on those two occasions. The Umpire stated that the claimant's conduct was not wilful and it was not deliberate. His failure to go to work was due to a situation beyond his control. It would have been highly improper for him to disregard the welfare of his young children by leaving them alone. He had an obligation to care for them. The appeal was allowed.
Appellant: Albert Bittern
Date: 1999
CUB 53044 Umpire Decision- The claimant wished to take three days off of work to attend the National Chiefs' Assembly, when he approached his superior he was told to fill out a vacation request form which the latter would pick up later. The superior did not indicate to the claimant that there would be a problem in getting the time off; in fact the claimant felt that he had received approval from his superior. The claimant was unable to contact his superior to give him the vacation request form, because of this he took the three days off with the understanding that he was approved for those days. As in the Tucker caseA-381-85 Judgment Of The Federal Court Of Appealthis case shows no such wilfulness. The Board didn't relate the conduct of the claimant to the requirement for finding someone “guilty” of misconduct. The appeal was allowed.
Appellant: David Somer
Date: 2001