The Fair Work Commission (“FWC”) has found in favour of an unfair dismissal application by an employee who was dismissed for conduct reasons, but in its ruling has confirmed that secret recordings are valid reason for termination of employment.
Although the dismissal was found to be unreasonable and harsh, the FWC found that reinstatement would be inappropriate given that the employee’s secret recordings are valid reason for termination, notwithstanding that the employer was not aware at the time.
Background
The Applicant was a casual sales assistant employed on a regular and systematic basis who had been terminated because of three allegations of misconduct relating to her non compliance with a policy and alleged behaviour towards her regional manager.
Up until two months before the dismissal the Applicant had regularly worked 20 to 25 hours per week, which were then reduced by the employer, purportedly because the employee had indicated limited availability, refused to accept shifts at another store and had been absent due to illness.
The Applicant disputed these reasons, claiming that she had indicated that she was available for most of the month in question. The Applicant had also purportedly failed to correctly indicate her availability for shifts by texting instead of calling her manager, despite evidence showing that this was not strictly enforced by the employer and that no issue was ever raised with her previously.
The dispute culminated in a meeting with the employer’s regional manager, which the Applicant secretly recorded on her phone because she was “fearful” of the regional manager. The Applicant did not notify the regional manager at the time that she was recording the meeting. The regional manager alleged that during the meeting the Applicant was “unreasonable”, she “became quite angry”, turned “red in the face” and “stepped towards me in what I felt was an aggressive manner”, which made her feel intimidated and uncomfortable.
“Bungled and incompetent” termination process
Following the meeting which the Applicant had secretly recorded, the Applicant and regional manager corresponded via email about the disagreement over the rostering arrangements. The Applicant was subsequently invited to a meeting with the employer’s national human resources manager to discuss allegations against her about her conduct towards the regional manager.
The national human resources manager alleged that the Applicant had been disrespectful, insubordinate and intimidating during the meeting with the regional manager and via email, and that she had failed to comply with the employer’s policy about notifying it of absences from work.
The national human resources manager objected to the Applicant’s choice of support person for the meeting on the basis that the support person was an active member of a disciplinary investigation against the Applicant (this was found by the FWC to be incorrect). Although initially indicating that they would reschedule the meeting for the Applicant to find another support person, the national human resources manager stated via email that the meeting would go ahead and that the Applicant would be suspended without pay if she did not attend.
The Applicant did not attend the meeting and was immediately dismissed, receiving a voicemail and email setting out the reasons for her termination.
Termination unfair, but secret recordings are valid reason for termination
The FWC described termination of the Applicant as a “bungled and incompetent” process, and the national human resources manager as “incompetent in respect of her ability to deal with the termination of an employee” The FWC found that the three allegations of misconduct that the employer relied on to dismiss the employee were not valid reasons for dismissal. The FWC considered the audio that had been secretly recorded by the Applicant and found that the employer’s description of the Applicant’s demeanour and tone during the meeting was not substantiated.
Although the FWC considered that there may have been some justification for the recording of the conversation, the Applicant should have advised that she was recording the conversations. The FWC found that the employer did have a valid reason for terminating the Applicant, ruling that a secret recordings are valid reason for termination. However, the dismissal was unreasonable because the Applicant was not notified of this being the reason for dismissal and did not have a chance to respond.
The FWC held that reinstatement was not appropriate in the circumstances, because the secret recording meant that in all likelihood there would be disciplinary action taken against the Applicant, and that the trust and confidence in the Applicant had been lost because of it.
Key takeaways
• Employers must ensure they have a valid reason for termination • The termination process must be procedurally fair • Secret recordings are valid reason for termination
