Executive cites health issues as part of arrangement with company's directors
Does a worker have a right to question the entitlement that an employer gives its management?
In this case, the employee argued a certain company practice was “discriminatory” and “unfair” to other company employees.
The employee was a part-time assistant accountant for a manufacturer of paint and render. She started in January 2020 and was dismissed in July 2021.
A few months before her dismissal, she complained about the leave accruals of the employer’s CEO and alleged that those entitlements involved “illegality and discrimination” against her and other employees.
She gave evidence in May 2021, where she identified an alleged “illegal” practice concerning the leave entitlements of the CEO. She told HR the latter had been absent for more than four months and leave had not “been entered or deducted from his leave balances.”
HR replied to her email thanking her for “raising her concerns” and advising her that “due to the sensitive nature of the content raised, HR would personally look into those issues,” with an assurance that the alleged “errors” would be corrected.
‘Anomalies’ in payments
A month later, she sent another email, noting that “the anomalies” with the CEO’s leave payments and balance had not been “appropriately rectified.” A screenshot of the leave records was inserted into the email, which displays information including the CEO’s hourly rate, salary and reasons for leave for the period questioned. She once again alleged that what had occurred was “illegal,” and she “foreshadowed contacting the Fair Work Commission or the Ombudsman” if the issues “remain unresolved.”
She told the employer that “she realised that she would not be viewed in a favourable light by the executive team for raising concerns about the leave payments and balance,” but said: “What it really boils down to, is what is happening here in the workplace is illegal, and if I did nothing about it, I would also be compliant in the illegal activity; and I am not willing to do that for anyone, sorry.”
She denied that she “went trawling through the payroll system to find the CEO’s leave balances” and said that “her job required her to process monthly leave balances.”
The employee agreed that CEO’s pay details were sensitive and not readily accessible to anyone.
The CEO explained that he took a lengthy period off work “due to a combination of circumstances related to his health.”
The Fair Work Commission (FWC) found that “as an alternative to the CEO making a workers’ compensation claim, the employer’s directors agreed to support him by paying an agreed percentage of his annual salary until he decided whether to return to work.”
They also agreed that there would be no deduction from his leave balances during that time.
The employee’s dismissal
The employer said she was dismissed because she discussed sensitive and confidential information about the CEO’s salary and leave entitlements with another employee, breached a lawful and reasonable direction not to discuss it, and misused confidential information not relevant to her work, among other misconduct.
On the other hand, the employee said the employer took adverse action against her by standing her down, investigating her conduct and dismissing her. She said it was because she exercised a workplace right to inquire or complain about the terms and conditions of her employment compared to the salary of the company’s CEO.
She also complained about being underpaid concerning claimed entitlements under her relevant award, including consultation, payment of overtime and a reduction in her ordinary working hours.
HRD previously reported about an employee who questioned the management’s policy of “retaining the tips,” and said she suffered for it.
The FWC’s decision
In its decision, the commission considered whether an employee could make a complaint or inquiry (or foreshadow the making of a complaint or inquiry) regarding a claim unrelated to her job.
It said the employee’s email regarding the CEO’s benefits was “not a complaint or inquiry” concerning her employment “but a mere request for assistance.”
The commission found the employee had a workplace right to make a complaint or inquiry concerning payment for excess hours she had worked and exercised that right by emailing the employer.
“The employee’s conduct in disclosing the CEO’s private remuneration arrangements to a co-worker and by emailing information in this regard to her private email address and printing it at a public location, was utterly inappropriate and, of itself, deserving of disciplinary action up to and including dismissal,” the commission said.
“She knew that the information she disseminated was confidential and disregarded this. She had no legitimate purpose for emailing the information to her private email address and did so only to further her unmeritorious and inappropriate grievance about private remuneration arrangements entered between the CEO and the board of directors.”
“Those arrangements were not a matter about which the employee could have had any legitimate concern,” the commission added.
Thus, it dismissed the employee’s application.
