Employee who breached company policy secures reinstatement

Employee who breached company policy secures reinstatement

Employee who breached company policy secures reinstatement

The Fair Work Commission has ordered the reinstatement of an employee dismissed for deleting records from an employer-provided mobile phone, primarily on the basis that the company’s policy that it relied on to support the termination was complex, legalistic, and not understood by most employees.

The female employee, ‘EAB’, commenced employment with the Western Sydney Migrant Resource Centre (WSMRC) in 2016 on a part-time basis. At the time of her dismissal for serious misconduct on 3 February 2022, she held the position of Specialist Intervention Services Manager (Acting).

WSMRC is a not-for-profit company that provides a range of services to the Western Sydney migrant community. EAB was involved in the company’s Specialist Intervention program providing support to refugees classified by the Commonwealth as having high or complex needs, referred to as Tier 3 clients.

As part of the Tier 3 program, WSMRC is required to have a specialised caseworker available to clients between 5:00 pm and 9:00 am. Ms EAB was provided with a second mobile phone (‘the on-call phone’) to receive calls after 5:00 pm in addition to her normal work phone.

On 15 December 2021, the CEO of WSMRC was advised that EAB had deleted data from the on-call mobile phone. They formed the view that this constituted a breach of company policy and, following several meetings with her, summarily dismissed her.

In the view of Deputy President Michael Easton, the decision to terminate was harsh, unjust and unreasonable.

EAB presented evidence from co-workers that they did not understand to delete information from a work phone was forbidden, nor had they been provided with thorough training concerning the policy.

The Deputy President acknowledged that EAB had breached the literal terms of the policy, which he described as “long, complex, legalistic” and a document that “should have unambiguously spelt out the requirements for retaining and preserving information on mobile phones and the very serious consequences for not complying with those requirements”.

Further, the investigation undertaken by WSMRC failed to identify that EAB had, in fact, deleted client records, as she maintained that she had extracted all relevant information from the mobile phone and uploaded it to the company’s database prior to it being deleted.

Deputy President Easton ordered her reinstatement and the payment of lost earnings since the dismissal.

He exercised his discretion to reduce the amount by 25% as there was almost no evidence provided that she had made reasonable attempts to find alternative employment and mitigate her loss.

EAB v Western Sydney Migrant Resource Centre Ltd (U2022/2111) 7 March 2023

For queries about investigations, misconduct allegations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 374.0823

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