By Mike Toten Freelance Writer

An employee who committed three examples of serious misconduct was validly dismissed. The Fair Work Commission (FWC) noted, however, that the employee had strong religious beliefs and was probably unaware of the gravity and consequences of his misconduct. The employer did not prove its claim of “a pattern of misleading and dishonest behaviour”, but the three incidents were enough to provide a valid reason for dismissal. 

FACTS OF CASE

The employee’s misconduct comprised the following:

  • He claimed four days’ jury service leave despite the Court notifying him that he was not required to attend, resulting in financial gain for him. The FWC said that he should have either worked from home or taken leave if he needed a break from work.
  • He used inappropriate and offensive language during a work meeting, later claiming that his comments were taken out of context. The FWC found that no work context would justify such language.
  • He ignored a request to attend a disciplinary meeting, thus refusing to follow a lawful and reasonable direction by the employer.

The employer claimed that the above and some other incidents, including the misuse of carer’s leave, failing to comply with the employer’s travel policy, and failing to comply with some work instructions, amounted to a pattern of misleading and dishonest behaviour, which it gave as the reason for dismissal. The FWC found that the employer did not establish that a pattern existed, but that the first three above incidents provided a valid reason to dismiss.

The FWC also commented that the employee otherwise had a “likeable” personality and appeared to be unaware of the gravity of his misconduct. This probably explained why the employer did not take stronger action sooner.

DECISION

The FWC rejected the employee’s claim of unfair dismissal. The process followed by the employer was procedurally fair.

WHAT THIS MEANS FOR EMPLOYERS

Dismissal for misconduct can be valid even if not every reason presented by the employer is proven – as long as at least one of the reasons is a valid one.

READ THE JUDGMENT

Osia v BOC Limited [2024] FWC 1506 (11 June 2024)