In brief 2 min read
A Full Bench of the Fair Work Commission (the FWC) has upheld a decision to reinstate a worker after he was dismissed for contravening the employer's mobile phone usage policy.1 The Full Bench agreed with an earlier decision of a single member of the FWC, deciding that the dismissal was harsh, taking into account the employee's circumstances.
Despite having a valid reason to dismiss an employee, employers should be mindful that:
- factors such as an employee's length of service, safety record, character and the nature of the breach must all be considered before making a decision about disciplinary action, as those factors might render an otherwise valid decision to dismiss them disproportionate or harsh; and
- even in circumstances where a breach of safety standards has been established, if the dismissal is found to be harsh, reinstatement may still be appropriate as the primary remedy for a claim of unfair dismissal.
An employee, Mr Hudson, was dismissed by Metcash Trading for breach of its 'Personal Electronic Devices Policy' (the Policy), after using his mobile telephone while operating a forklift in a 'High Risk Area'. Metcash said that the Policy drew a clear line in the sand around the use of mobile devices in its warehouse, stating that mobile phone use in a 'High Risk Area' could lead to disciplinary action up to and including termination of employment.
A single member of the FWC found that a breach of the Policy was a valid reason for dismissal and there were no procedural deficiencies in the termination of his employment. However, the employee's 23 years of service, clean safety record, expression of remorse and the classification of the breach as a 'momentary mistake' made Metcash's decision to dismiss the employee harsh, and therefore unfair.
The FWC said that although the employer had sought to draw a line in the sand by implementing the Policy, and that Mr Hudson was aware of the Policy, it did not call for the zero-tolerance approach that had been taken in this case. The FWC ordered that Mr Hudson be reinstated and compensated for lost earnings (minus 25% for the breach). It decided that he posed no risk to health and safety, and that his reinstatement would not undermine the Policy's operation.
Metcash appealed, arguing that the Commissioner did not properly consider its need to uphold safety standards, and the risk posed by Mr Hudson's conduct, despite the fact that no harm had occurred. However, the Full Bench upheld the original decision. It said that these factors did not outweigh the other considerations raised in Mr Hudson's favour, and was satisfied that the Commissioner had made no error.
Metcash Trading Limited v Michael Hudson  FWCFB 2.