The Fair Work Commission (the “FWC”) has found that a massage justified summary dismissal in circumstances where a small contract cleaning company discovered that its employee had, some five months earlier, agreed to help a school teacher with her back pain.

1. Legal background

Previous authorities have determined that, in assessing whether a Small Business Employer has complied with the summary dismissal section of the Small Business Fair Dismissal Code, it is necessary to determine:
(a) whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal; and
(b) whether the employer’s belief was, objectively speaking, based on reasonable grounds (noting that whether an employer has carried out a reasonable investigation into the matter will be relevant to this part of the assessment).

2. Massage justifies summary dismissal

The cleaner admitted that, at the request of the teacher, she squeezed the teacher’s back with her hands for two minutes and used her “toe finger”, presumably, to walk on the teacher’s back. While the FWC accepted that the cleaner believed she had helped a person in discomfort, the FWC considered this to be a “far cry” from a person reacting to a medical emergency in order to help a person in serious trouble.

The cleaner claimed that she received no written warning, there was no investigation of the incident and that she had not been informed of any rule prohibiting her from massaging the teacher. She regarded her dismissal as “illegal” and sought a “penalty” against her employer.

The FWC found that the massage justified summary dismissal because it was a serious breach of the employer’s contractual terms with one of its biggest clients and thereby put that contract at risk. With respect to the employer’s contention that there was a serious breach of work health and safety procedures, the FWC noted that there was no evidence that the employee had any qualifications in massage therapy and that the massage may have resulted in an injury.

3. Key takeaways

For small business employers:
• it may be appropriate to take disciplinary action (including termination) with respect to historical incidents of misconduct (at least in circumstances where the misconduct is not discovered until a later date); and
• it is not always necessary to investigate instances of serious misconduct in circumstances where the employee has admitted to the conduct.

See the full decision here.

People + Culture Strategies