FWC quashes termination of long-term employee for single SMS incident of misbehaviour

FWC quashes termination of long-term employee for single SMS incident of misbehaviour

FWC quashes termination of long-term employee for single SMS incident of misbehaviour

The Fair Work Commission has quashed the termination of an employee on the basis of his long-standing unblemished history with his employer, determining that although there was a valid reason for dismissal, the disciplinary action taken was disproportionate to his conduct.

The employee ‘MF’ worked for Santos WA Energy Ltd (“Santos WA”) on Varanus Island in the position of General Service Operator (GSO). The role involved essential support services such as loading and unloading of marine vessels, provision of scaffolding and rigging, painting, carpentry, handy work, and general machine and plant maintenance.

MF had worked on the island for Santos WA and previous operators from 6 August 2004 until his dismissal on 16 January 2023, during which time he had an unblemished performance and conduct record.

From September 2020 until January 2023, various employees on the island, including MF, were engaged in enterprise bargaining negotiations to replace an existing agreement.

During a period of protected industrial action, Santos WA forwarded an FAQ to all employees advising them of the company’s expectations to comply with its Values and Code of Conduct which includes not using inappropriate, offensive, humiliating or intimidating language, not engaging in bullying or harassment, and not disclosing sensitive or confidential information. MF completed training on the Code on 3 December 2019 and 27 July 2021.

In evidence before Deputy President Abbey Beaumont, MF accepted that harassment at the workplace was prohibited and that an employee is not permitted to harass an employee or contractor.

On 16 September 2022, a third-party contractor ‘DE’ was scheduled to travel to the island for the purpose of conducting VOCs. The night before he departed, he received a Text Message from a number unknown to him.

The text message read, “ARE YOU SERIOUSLY CONSIDERING GOING TO ‘VI’ DURING PROTECTED ACTION. Support the boys and take a sickie”. DE said he felt intimidated, which led him to decide not to visit the site as scheduled.

A subsequent external investigation was conducted, which revealed that MF was the author of the text and that he had previously worked with DE in or around 2004.

Santos WA concluded that the text was sent to intentionally intimidate DE from attending the island, was disrespectful and harassing in nature, and therefore breached the Code, resulting in his dismissal.

The Deputy President noted, “Under the circumstances, I have found that it would have been reasonable for (DE) to have considered the Text Message uninvited, unwelcome and intimidating, hence feeling the way he did”.

The Deputy President agreed that there was a valid reason for MF’s dismissal but that it was harsh in the circumstances.

As she noted,

“In my view, the Applicant’s actions (misconduct) warranted censure … However, the Applicant had been employed by the Respondent or its predecessors for some 20 years with no prior warnings in relation to his operational competency. He was approximately 52-53 old and had spent the most part of his entire working life on VI … the Applicant’s dismissal was harsh”.

The Deputy President determined that reinstatement would be inappropriate due to a breakdown in the relationship between the parties, instead ordering Santos WA to pay MF a payment amounting to $65,561.49.

MF v Santos WA Energy Ltd [2023] FWC 975 (13 June 2023)

For queries about workplace behaviour, allegations of misconduct, 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: 355.0723

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