Sacking by email found to be unfair
In the recent decision of Pierce Field v Department Of Finance [2022] FWC 1619 (24 June 2022), the Fair Work Commission (FWC) found that procedural deficiencies (including termination via email) and denial of natural justice outweigh and overrule instances a termination could otherwise be considered valid.
Background
The applicant worked as an Electorate Officer for Senator the Honourable Kristina Keneally of the ALP (as she then was). The applicant was employed on a full-time basis pursuant to a series of consecutive fixed term written employment agreements. The applicant had been employed to work for Senator Keneally for a total period of almost 1½ years.
During the period of the applicant’s employment, there were several performance and conduct issues which raised concern for the Chief of Staff. This culminated in a tense meeting on 19 October 2021 and the applicant was placed on leave. The following day, 20 October 2021, the applicant had a conversation with Ms Natalie Baini, a Liberal Party staffer.
Ms Baini was known to the applicant as she had been an unsuccessful candidate seeking Liberal Party preselection to replace the former Member for the seat of Reid, Mr Craig Laundy. Ms Baini had previously discussed with the applicant details of allegations that she had raised about the conduct of Mr Laundy, that also included the alleged exercise of coercive control over Ms Baini. She claimed Mr Laundy was motivated by the breakup of their alleged relationship.
The applicant then contacted Mr Laundy and a tense conversation took place. This conversation was then reported to Ms Keneally.
Ms Keneally then apologised when Mr Laundy rang and said she was appalled by the applicant’s conduct.
She asked Mr Laundy to send screenshots of the messages and obtained advice from the Ministerial and Parliamentary Services branch of the Department of Finance – which acts as employer on behalf of the Federal Government – before telling her chief of staff she had made a final decision to summarily dismiss the applicant.
In a letter terminating his employment, emailed to the applicant 20 minutes later,
Ms Keneally said his approach to Mr Laundy caused a serious and imminent risk to the reputation of her office and position and constituted serious misconduct.
The applicant then filed the claim for unfair dismissal seeking a remedy of financial compensation. The matter was heard by Commissioner Ian Cambridge.
The applicant’s lawyers submitted that the summary dismissal of the applicant was made without valid reason and via deficient process which he said established that the dismissal of the applicant was harsh, unjust, and unreasonable.
Finding
The FWC stated that in consideration of all the relevant circumstances, the actions of the applicant involving his communications with Mr Laundy on 20 and 21 October 2021, represented a valid reason for his dismissal.
However, Commissioner Cambridge also found, that it was "entirely inappropriate and unnecessarily harsh" to notify the dismissal via email and the hasty process "consciously deprived" the applicant of any opportunity to be heard.
Commissioner Cambridge also stated as follows:
“The Commission as currently constituted has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided”.
In relation to the question of the applicant’s ability to respond, Commissioner Cambridge found that “the procedure that the employer adopted whereby it hastily moved to summarily dismiss the applicant, and it consciously deprived the applicant of any opportunity to be heard, was a significant procedural defect which denied the applicant natural justice”.
Ultimately, the FWC found that although the applicant was dismissed for valid reason involving his serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant had rendered the summary dismissal to have been harsh and unjust. The applicant’s dismissal has been found to have been unfair.
The applicant was not reinstated but was issued with monetary compensation.
Key takeaway points
Employers should note the following:
Employers should take a cautious and inquisitory approach when considering termination even for summary dismissal matters.
Employers should refrain from termination via email or SMS.
Where necessary, seek independent advice and/or consider an investigation
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
