I recently came across a Fair Work decision which stood out to me because it highlighted a consideration that I have to regularly remind my clients of when they are seeking advice regarding the termination of an employee. That is, as well as making sure you have a valid reason and you follow a procedurally fair process – you also need to consider the individual circumstances of the relevant employee.

In the decision I am referring to the Fair Work Commission held that an anti-Muslim email that vilified those of the Muslim faith and sought to motivate readers to take political action against them, had significant potential to damage an employer’s reputation and therefore provided a valid reason to dismiss the employee.

Helpfully, the employer in this case had extensive policies and procedures in place detailing acceptable conduct in the workplace, and the employee had been previously given a verbal warning to stop sending anti-Muslim emails.

However, in addition to considering whether an employer did in fact have a valid reason to rely on in reaching its decision to terminate, which in this case the Commission held the employer did, the Commission also considered the particular circumstances of the relevant employee in deciding whether the decision to termination was harsh or unreasonable. In this case, among other things, the Commission focused on the following:

  • the employee’s age (65), length of service, and good prior work record;
  • the absence of any formal record that the employee was formally trained on acceptable email use;
  • the fact that the employee was not formally counselled or warned about his earlier non-work related emails;
  • the investigation / disciplinary process initially led to an assessment that the employee should receive a final warning, but this was overridden by senior management and upgraded to a dismissal; and
  • the prospects of the employee obtaining other comparable employment was extremely limited;

and given those matters, the Commission deemed the employer’s decision harsh and unreasonable.

In the circumstances the Commission decided reinstatement was not appropriate as it was probable that the employee would reoffend given his attitude to the content of the email (specifically, he genuinely holds the views expressed in the email, and his only regret was having been dismissed for sending it) – so instead he was awarded compensation of $28,578.

See Ronald Anderson v Thiess Pty Ltd [2005] FWCFB 478 (30 January 2015) for more information.

So when considering the termination of a person’s employment – remember to focus your attention on the reason, the process and the individual circumstances of the employee in question, when considering your unfair dismissl risk.