Company says worker breached its privacy and disclosed confidential information
The Fair Work Commission (FWC) recently dealt with a worker who said he was unfairly dismissed after he took an unauthorised traineeship.
The employer stood by its dismissal and said that what the worker did was a breach of the company’s privacy policies. On the other hand, the worker argued that the management knew that he was about to enroll in a program.
The company operates a pharmacy business called Preston Discount Pharmacy, which is co-owned by Danny Hanna and Deena Hanna. In July 2022, Ms Hanna suggested to a worker, Wei Jhang, that he should take a pharmacy assistant's course offered by the Pharmacy Guild of Australia (Guild), and he agreed.
On August 26, 2022, Ms Hanna signed a supervisor's report confirming Jhang's completion of certain competencies. He finished the course on September 16, 2022, and soon after, became a permanent part-time employee.
At a later point, Ms Hanna recommended that Jhang take a pharmacy dispensary course, offering to pay for it. Jhang liked the idea and sent Ms Hanna an invoice for $1150, but she then stated that he would have to foot the bill himself. Jhang enrolled in the course on December 21, 2022, and paid for it without informing Ms Hanna.
In early December 2022, pharmacist Miranda Wu contacted the Guild to inquire if she could be Jhang's pharmacy supervisor for the dispensary course.
She explained that she was a pharmacist but worked different hours than Jhang. The Guild informed her that it was acceptable, and the supervisor's name could be changed later.
According to Wu, her employment with the company came to an end on February 9, 2023. She asked Michelle Yan, another pharmacist, to become Jhang's supervisor. Yan responded by saying that she would do her best if she was needed to assist with Jhang's course. Jhang claimed that the company did not properly compensate him during his employment.
He explained that the company deducted wages unreasonably and did not fully pay him for his shifts. Additionally, he mentioned that he did not receive breaks, sick leave was treated as annual leave, and he was not paid annual leave loading as required by the Award.
Jhang raised these concerns with Ms Hanna on various occasions, including through Wu. On March 6, 2023, he informed Hanna that, according to the Fair Work Ombudsman, he was entitled to annual leave loading.
He presented Hanna with a printout from the website, but she claimed not to understand and returned it to him.
Jhang and Wu went overseas on 8 March 2023. While still on leave on 21 March 2023, Jhang sent Ms Hanna a screenshot of the annual leave loading page from the Ombudsman's website.
According to Jhang, when he returned from annual leave on 27 March 2023, Hanna dismissed him for enrolling himself in a course with the Guild, claiming it breached the company's privacy.
Dismissed over traineeship
According to the decision, Jhang disagreed with the reason for his termination, stating that he did not breach anyone's privacy, disclose confidential information, or engage in misconduct as mentioned in the dismissal letter.
He believed that he was actually dismissed because he raised concerns about his entitlement to annual leave loading with Ms Hanna. He was never warned about any poor performance or misconduct, and he considered himself a good worker who was treated poorly during his employment. He believed his dismissal was unfair.
Meanwhile, Ms Hanna provided evidence that she supported and encouraged Mr Jhang's enrollment in the pharmacy assistant course, which was a requirement for the company. The course cost around $100, and the company covered the expense.
Ms Hanna later recommended that Jhang consider taking a dispensary course but clarified that she would not pay for it as it was expensive. In December 2022, when Jhang asked her to pay for the course, she informed him that he would have to cover the cost.
After that, Ms Hanna didn't hear anything else from Jhang regarding the matter, assuming he had decided against pursuing the course.
Enrolled without the employer’s knowledge
Ms Hanna was unaware that Jhang had enrolled in the dispensary course until March 6, 2023, when a Guild representative contacted the pharmacy for an oral test.
She denied telling the representative that she would be Jhang's supervisor, clarifying that she agreed to help him obtain a refund by signing the refund form.
Ms Hanna stated that if Jhang had expressed his interest in pursuing the course, she would have supported him. However, neither Jhang nor Wu had mentioned it to her. Additionally, Ms Hanna revealed that both Jhang and Wu had used the company's Guild membership to receive a significant discount on the course without her knowledge.
According to Mr Hanna, the course Jhang enrolled in at the dispensary was actually a traineeship with the Guild, which requires the employer's involvement.
Neither Mr Hanna nor Ms Hanna was aware of this arrangement, and the company only found out about it by chance, as Ms Hanna described. Mr Hanna provided a workplace-based training plan for Jhang, which he obtained from the Guild.
This document is a joint plan developed by the relevant training authority (in this case, the Guild), the employer, and the trainee. It specifies that the qualification is the pharmacy dispensary course, Jhang is the trainee, Preston Discount Pharmacy is the employer, and Wu is the contact person for the employer.
The document is dated 22 December 2022 and has been signed by Mr Jhang and Wu on behalf of the employer. However, it should be noted that wWu did not have the authority to act on behalf of the company.
The decision
“Mr Hanna said that Mr Jhang had signed up for a course that represented that his employer was party to a traineeship when the company had no knowledge of this, and no supervision arrangements were in fact in place,” the Commission said.
“He said that the company also learnt that Mr Jhang and Ms Wu had approached another pharmacist, Michelle Yan, and asked her to be his supervisor, without asking the company’s permission.”
“Mr Hanna and Ms Hanna said that they decided to dismiss Mr Jhang because they believed that he had committed misconduct by enrolling in a workplace-based traineeship without telling the company,” it added.
The Commission said the issue, in this case, was “whether the company believed on reasonable grounds that the employee’s conduct was sufficiently serious to justify immediate dismissal.”
“In my view, it did,” it ruled. Thus, it said the worker’s dismissal was consistent under the FW Act and said it was not unfair.
