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Employer has reason for terminating employee but still considered "unjust and unreasonable" according to the AIRC! |
Case Citation: Reynolds and Country Fire Authority (PR950786) 13 August 2004 |
Senior Deputy President Lacey reviewed a case brought under the federal Workplace Relations Act 1996 where an employee of the Country Fire Authority in Victoria sought relief in respect of termination of employment under Section 170CE. The emplooyee's employment with the Country Fire Authority ("CFA") was terminated for misconduct. |
CFA asserted that the employee was dismissed for misconduct associated with the unauthorised use of the CFA computer and software utilised for excessive MP3 music file downloads, and the storage of sexually explicit and other inappropriate materials on his computer and elsewhere in his office. CFA's position was that the termination was appropriate, and was not harsh, unjust or unreasonable. |
The employee was a 53-year-old employee who had been with his employer for 13 years. He had been diagnosed with a debilitating illness in July 2002. Although his illness was the subject of a WorkCover claim, he continued working under modified duties. In March 2003 the employee sent an abusive and inappropriate e-mail to his manager. The e-mail was considered by higher management to reflect adversely on the employee's stability, his heath and safety and the health and safety of other employees. The employee was told to remain at home on full pay until he was certified fit for work. |
One month later, CFA stopped paying the employee's salary. In July a physician examined and assessed the employee and arrangements were made for him to attend a return to work meeting on 4 September. Interviews were conducted with the employee and his solicitor in September and October, and on 23 October the employee was notified that CFA had decided to terminate his employment. The employee was paid 5 weeks in lieu of notice. |
The employee's office was cleaned sometime around August 2003, (while he was absent on leave) during which the following items were discovered:
- Magazines containing sexually explicit material;
- Printed cartoons and jokes;
- A sexually explicit printed story; and
- A series of nude photographs of pre pubescent children printed on paper.
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| Based on the materials discovered, the management ordered that the employee's computer be examined for any additional material. The examination recovered a range of non-corporate software, music files (MP3), and an image of a woman kissing the breast of another woman. During an interview in the presence of the employee's solicitor, the employee admitted ownership of the printed cartoons and jokes and the breast image on his computer, but denied any knowledge of the other materials. |
The parties conceded that if the employee was found to be responsible for the pornographic material, it would be a valid reason for terminating his employment. The employee stated that there was no evidence that he was responsible for bringing in or leaving in the workplace the pornographic material and/or the music files. |
The AIRC found the 4-5 months that the employee did not attend the workplace to be determinative in its refusal to infer that the employee was responsible for bringing into, or leaving in the workplace the pornographic material. The AIRC was unable to conclude that the employee was responsible for the materials found in his office due to the fact that other employees had access to the office during the time the employee had been absent from work. |
The Commission found that the employee did maintain MP3 music files and non corporate software on his computer, and that was a violation of the code of conduct as listed in CFA policy. Senior Deputy President Lacey found that the employee's conduct in that regard was a valid reason for terminating his employment. |
Senior Deputy President Lacey also determined:
- that the employee was notified of the reasons for termination both orally and in writing;
- that the employee was given an opportunity to respond to the allegations;
- that performance was not an issue in the case; and,
- that CFA had established human resource policies administered by dedicated human resource personnel.
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| The ruling states that although there was a valid reason for terminating the employee's employment due to the fact that he was responsible for downloading MP3 music files and storage on non-corporate software on his computer, the termination was unjust and unreasonable because it was based on the fact that he stored a pornographic image on his computer and he had not been given an opportunity to remove it first. |
Reinstatement was not an option because the employee had subsequently been assessed medically as incapacitated for work. The Commission ordered an adjournment to determine the issue of remedy. |
peter.mcnamara@cml.com.au
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