Do workplace safety concerns justify unprofessional communication?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was terminated following a pattern of inappropriate workplace communications.
The case centred on whether the worker's dismissal was harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009.
The worker argued his communications were justified responses to safety issues, claiming he experienced fatigue due to missed meal breaks that once led to a car accident.
He also attributed his communication style to neurodevelopmental conditions and suggested the employer was retaliating against him for raising legitimate concerns.
Despite these arguments, the FWC needed to determine if the worker's manner of raising these issues—particularly through inappropriate comments in official records—warranted dismissal, or if the employer had acted unfairly in terminating his employment.
The worker had been employed as a sleep technician at Mater Misericordiae Ltd since February 2022 and was dismissed in June 2024. His dismissal followed multiple incidents, beginning with describing nurses as "primates" in a Microsoft Teams message about meal breaks.
In this message, the worker wrote: "The nurses can't discern what's happening with the studies anyway. They're basically a primate with an assumed ability to call a code if something occurs... Perhaps we can find an alternative primate with the ability to make a phone call in an emergency to cover the breaks."
The scientific director for respiratory and sleep and the clinical director of respiratory and sleep medicine issued a verbal warning following this incident.
Despite this and subsequent warnings throughout 2023 and 2024, the worker's unprofessional communications continued, including performing procedures outside his scope of practice and creating a computer folder with an inappropriate name.
The most serious incidents involved unprofessional comments in technical notes for paediatric sleep studies.
These notes formed part of patients' medical records and could be accessed by healthcare professionals, auditors, and potentially patients or their parents under the Privacy Act 1988.
In one example, the worker wrote in patient technical notes: "I have retrieved some pediatric sized oximeters from the respiratory secret, secret equipment hoard earlier... I would ask, however I expect I would shortly afterwards receive an invitation from HR for speaking without good judgement or acting unprofessionally, or whatever the new code is for not being completely useless and also silent about the absence of action in cases such as this."
The clinical director testified these notes could distract clinicians. The FWC noted: "It would self-evidently be distressing for a child or parent to read notes such as these in their patient record."
These comments were deemed particularly serious as they appeared in official medical records rather than in communications directed only to management.
The worker defended his conduct by arguing he was raising legitimate concerns about faulty equipment and workplace health and safety issues, particularly the lack of meal break coverage during 12-hour shifts.
He claimed fatigue from missed breaks led to a car accident in February 2023, causing injuries to his ribs and kidney.
He had previously used employer-provided forms to report missed meal breaks with sarcastic comments. However, these forms were directed to managers rather than inserted in patient records, and there was no evidence of disciplinary action related to these forms.
The FWC rejected the worker's justifications, stating: "If he was dissatisfied with his supervisor or manager's response to his complaints... he could have sought to escalate the matter to the hospital's chief medical officer, executive director, CEO, or other senior role... He had various options that would have allowed him to ventilate his concerns without risking distress to child patients and their parents."
The employer issued a show cause notice on 20 May 2024 after previous warnings had not improved the worker's communication. The worker received extensions to respond, submitting his written response on 28 May.
The FWC found: "[The worker] was given an opportunity to respond prior to the decision to dismiss being made, of which he availed himself."
The employer invited the worker to bring a support person to relevant meetings and rescheduled a meeting to accommodate a union official's availability.
While the worker claimed limited access to his work email during this period, the FWC noted he clearly received and responded to the show cause notice.
The final decision to terminate employment was made effective 24 June 2024, following consideration of his response and disciplinary history.
The FWC determined the dismissal was not harsh, unjust or unreasonable. The Commission found: "The incidents of misconduct regarding the patient records provided a valid reason for dismissal in and of themselves. In addition, [the worker's] previous issues with communication, including the issues warranting prior disciplinary action, fortify the validity of the reason for dismissal."
Although the worker claimed he was treated differently from another staff member who allegedly engaged in worse conduct, the FWC concluded:
"Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of [the worker] was not harsh, unjust or unreasonable. There was a valid reason for the dismissal, of which [the worker] was notified, and in respect of which he had an opportunity to respond."
This case demonstrates that while employees have the right to raise workplace safety concerns, they must do so through appropriate channels.
