Introduction

An employee may be summarily dismissed if their employer has reasonable grounds to establish serious misconduct.

The Fair Work Commission (the “FWC”) recently held an employer did not unfairly dismiss one of its employees who had claimed ownership of its intellectual property and was in the process of taking the intellectual property outside of the company. This decision provides an example of where intellectual property breaches may constitute serious misconduct which warrants the employee being summarily dismissed.

Background

The Applicant was employed as a Regional Development Support Officer for the Respondent, a government-funded organisation. During her employment the Applicant was involved in a project which was initiated by the Respondent.

The Respondent became concerned that the applicant had been asserting ownership to the rights and intellectual property of the project, and conducted an investigation into the Applicant’s conduct. After interviewing the Applicant and giving her an opportunity to provide a further response (which the Applicant did not do) the Respondent summarily dismissed the Applicant for engaging in serious misconduct.

The Respondent claimed that it had reasonable grounds to summarily dismiss the employment, and that it had done so in accordance with the “Small Business Fair Dismissal Code”. The Respondent claimed that the Applicant had “admitted to theft” via email of a program that was centred around helping small businesses recovering from the COVID-19 pandemic. The Respondent claimed that the Applicant’s intention was to derive personal benefit from this alleged theft along with a team of external consultants. The Respondent further contended that any continuation of the Applicant’s employment even for a short time would have resulted in the increased risk of the Applicant accessing resources for personal benefit.

Outcome

The FWC did not agree that the Applicant had admitted to theft in her email. However, it found the evidence clearly demonstrated an admission to developing a plan with the relevant consultants by which they intended to take the project out of the Respondent’s organisation.

The FWC didn’t not agree with the Applicant that she held the intellectual property in the project due to her role in its development, and noted that the Respondent had invested resources into the development of the program. The FWC was satisfied that intending to derive personal benefit amounted to series misconduct. This warranted the employee being summarily dismissed from her employment on the basis that her conduct was dishonest and deceptive and had led to a breakdown of trust and confidence.

Key takeaways

• Employers may summarily dismiss employees who engage in serious misconduct, including breaches of intellectual property obligations.
• Conduct which is dishonest and deceptive may amount to serious misconduct which warrants the employee being summarily dismissed.
• Although programs and systems may be developed by employees, intellectual property rights will likely remain with the employer if it has been developed during the course of the employee’s employment.

People + Culture Strategies