Daniel Girardi was dismissed by his former employer, Allergan Australia Pty Ltd in 2015, after having a meeting with management to discuss an expenses claim.
Girardi had travelled to Mount Gambier in early May 2015, on the same weekend when his wife and son were attending a jazz festival, and submitted a $670.48 travel-related expenses claim for meals and accommodation.
His employer said Girardi lied about the purpose for the trip to Mount Gambier and sought to justify it after the event when called upon to support the expenses claim.
Allergen argued that the main reason given for the trip, being to attend a meeting of healthcare professionals (General Practitioners) in Mount Gambier, was a fabrication and a vain attempt by Girardi to justify his visit to the South East as being work related.
His employer also alleged that Girardi failed to follow correct procedures in that he did not obtain prior approval for the trip and the alleged expenses.
Therefore his employer said that given the applicant’s role as a senior territory business manager who largely worked autonomously, Girardi’s conduct was serious misconduct warranting dismissal.
Despite attending an urgent meeting on June 11 with his manager to discuss his expenses, which ended on the basis that Girardi was to provide additional details to support his expenses claim, on the morning of 12 June 2015, without waiting for any response from the applicant, Girardi was advised of the termination of his employment by email.
When considering if Allergen had a valid reason to fire Girardi, the Fair Work Commission
looked at three key elements. Namely, a breach of policies, the alleged misleading of the employer about the facts leading to the final warning and the justification for the Mount Gambier trip, and the loss of trust and confidence held by Allergan in Girardi.
However, the Fair Work Commission
upheld Girardi’s unfair dismissal claim, finding that his employer had breached a key component of the Fair Work Act, by not giving him an opportunity to respond after the June 11 meeting.
Therefore, the commissioner considered the dismissal of Mr Girardi to be harsh and unreasonable and ordered Allergen to pay him compensation of $21,938.00.
Amber Sharp, Partner at Marque Lawyers, says employers need to follow procedure fairness and avoid “knee-jerk” reactions when considering if workers have broken company rules by mixing business with pleasure.
“Employers must consider whether there is a sufficient connection to the workplace or impact on the employer /employee relations
hip,” Sharp told HC Online.
While the commissioner found Girardi’s conduct fell short of serious misconduct, but nevertheless provided a valid reason for dismissal, his employer “demonstrated serious shortcomings in reaching and finalising its conclusions and the dismissal decision.”
The commissioner said it was unreasonable for Allergen to view Girardi’s trip as a complete fiction, and that his employer had failed to undertake the kind of investigation necessary to reach an informed decision.
Girardi’s Mount Gambier trip did achieve a limited work purpose, the commissioner said, however “represented a recklessly organised and largely unproductive exercise that facilitated some work being done during a trip that otherwise suited Mr Girardi for personal reasons.”
The FWC documents stated that while Girardi’s misconduct impacted upon the necessary trust and confidence in the employment relationship, in the circumstances it was not the kind of serious wilful behaviour warranting dismissal without notice, as set out in the Fair Work Act.
“The demonstrated actions of Mr Girardi are properly described as being very poor judgement on his behalf, combined with a lack of openness and integrity with the employer,” FWC documents stated.
Sharp says employers are entitled to summarily dismiss workers who commit serious misconduct, including “conduct that causes a serious and imminent risk to the reputation, viability and profitability of the employer’s business”.
“Employees can be disciplined for out of hours’ conduct that brings the Company into disrepute, impacts on the employee’s ability to perform their role, or seriously damages the relationship between the employer and employee,” Sharp says.
She advises HR managers to implement workplace policies that outline expectations around appropriate behaviour, and ensure that this covers after-hours conduct as well as conduct away from the workplace.
“Make express that this includes out of hours conduct such as attendance at work related events (Christmas party, client functions) and conduct outside of work that can impact on the reputation of the business,” Sharp says.
Classic cases of employees winning unfair dismissal claims against out-of-work conduct include Rose v Telstra , where an employee was sacked because of fighting with another colleague after hours when staying at a hotel related to a work assignment.
“Telstra argued the conduct brought the employer into disrepute and was likely to cause damage to the relationship of employer and employee. The then Australian Industrial Relations Commission didn’t accept that Telstra had satisfied the bar of a sufficient connection with work or reputational damage,” Sharp says.
In another case, The Full Federal Court affirmed that a Commonwealth employee who was injured while having sex in a motel room while on a work trip was entitled to worker's compensation for the injuries she sustained (Comcare v PVYM ).
While the line between business and pleasure is not always clear, HR managers can help minimize risk to their organization by ensuring clear policies are in place and following procedural fairness when disciplining employees.
A senior pharmaceuticals salesman who was sacked by his employer for combining a work trip with a jazz festival has won his case for unfair dismissal.