A worker has won his wrongful dismissal case after claiming his employer unfairly sacked him for selling sex toys outside of work, as well as poor on-the-job-performance.
In a complex case involving claims and counter-claims of sexual harassment, bullying and breach of contract, Andrew Saunders launched a complaint against his former employer Seqirus, a subsidiary of biopharmaceutical giant CSL Limited.
Mr Saunders was employed by the company between July 2015 and January 2017, when his employment was terminated.
Between September and December 2016, he lodged a formal complaint of workplace bullying against his direct manager, at the same time the company began performance management with him.
The dispute quickly escalated and, after a period of stress leave supported by medical practitioners, the company terminated his employment.
As well as concerns related to workplace performance, the company alleged that Mr Saunders had breached his employment contract by undertaking other business during his employment by selling sex toys and other adult items on eBay, which it used as justification for terminating his employment.
However, the Fair Work Commission upheld Mr Saunders’ claim of wrongful dismissal, suggesting that the company wanted to part ways with Mr Saunders even before it learnt of his “extracurricular activities”.
“Although CSL characterises Mr Saunders’ behaviour as misconduct, I am not satisfied in all circumstances that it was,” Commissioner Nicholas Wilson said in the verdict.
“If CSL considered the running of … an eBay store was in breach of its employment contract, it could have told him that with an ‘end it now’ directive and that could have been the end of the matter.
“However, in the context of both the evidence in relation to the allegation about Mr Saunders’ extracurricular activities, as well as the other allegations that were made against him, the commission is drawn to the probability that from the time CSL found out about the stores and what they sold, it had already made the decision to part company with him.”
Commissioner Wilson also found that termination on performance grounds was premature, and therefore this justification was also invalid.
“Despite the concerns expressed … about his performance and that [Mr Saunders] had been provided with a ‘Stage 1 Counselling email and Action Plan’ in August 2016, these matters do not rise to the level that could be regarded as a contributory factor to dismissal, let alone a reason for dismissal. The matters were at far too early a stage to be considered much more than subjects that needed to be discussed and addressed.
“In any event, there is insufficient evidence to find that poor work performance was a reason for dismissal.”
Mr Saunders was awarded compensation equivalent to eight weeks’ salary plus superannuation, however given that relations between the parties had become toxic, no order was made to reinstate Mr Saunders’ employment.
Recently, employment lawyer Geoff Baldwin of Stacks Law Firm wrote in My Business that workplace bullying claims are becoming increasingly prevalent, and the onus is on employers to have adequate – and legal – policies in place, and follow those policies, to minimise disputes escalating to court actions and terminations.
Meanwhile another lawyer, SME specialist Mark Gardiner of Teddington Legal, said that unfair dismissal actions are very easy for disgruntled former employees to make, and so it falls on the business to be diligent in keeping records and undergoing adequate performance management processes prior to terminating someone’s employment.
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.