Fair Work Commission says employer made a 'bad judgment call'
The Fair Work Commission dealt with the case of an employer who terminated one of its employees for allegedly deleting clients’ records on an issued work phone.
The central question: was there unfair dismissal?
Western Sydney Migrant Resource Centre Ltd (WSMRC) is a not-for-profit company that provides services to the Western Sydney migrant community, including settlement services and programs, visa crisis management, emergency relief, youth and family support, and case management services.
WSMRC also delivers a Tier 3 Humanitarian Support Program, providing specialised and intensive services to support refugees classified by the Commonwealth as having high or complex needs.
In this work, WSMRC is a sub-contractor to the Department of Social Services insofar as WSMRC contracts with Settlement Services International Limited (SSI), who in turn contracts with the Department of Social Services.
The worker commenced employment in 2016 on a part-time basis, and at the time of her dismissal, she held the position of specialist intervention services manager (acting). According to records, she was the only employee of WSMRC providing specialised and intensive services to Tier 3 clients.
As part of the Tier 3 program, WSMRC is required to have a specialised caseworker available to its clients between 5:00 pm and 9:00 am in case of emergency, and because of this, the employer gave her a second mobile telephone (“the on-call phone”) to receive calls after 5:00 pm. The evidence noted that apart from her on-call phone, she also had a work phone, and a personal one.
The employee said she received calls after 5:00 pm from Tier 3 clients, but clients just called her normal “work mobile” rather than the “on-call mobile.”
Over Christmas in 2021, the employee took leave, and a colleague became responsible for the on-call phone. But before handing it over, the employee deleted its contents.
The employer presented its contract with SSI, with terms that require WSMRC “to maintain client records for at least seven years and prohibit the destruction or disposal of records relating to Tier 3 clients. It said it also published a manual: ‘Western Sydney Migrant Centre Policy and Procedure Manual’ (‘WSMRC Procedure Manual).
The employer said the employee breached the WSMRC Procedure Manual “when she deleted whatever records and data were on the phone.” On the other hand, the employee said she “had never seen the contract with SSI during her employment” and “did not delete anything that could be understood to be a client record.”
Despite being unable to establish that any client records were actually “deleted,” WSMRC dismissed the employee for serious misconduct in February 2022.
The parties’ arguments
The employee acknowledged that WSMRC has “contractual obligations to preserve certain records and information,” but she said “those obligations were never communicated to her” since “she did not ever read the terms of the contract between WSMRC and its client was ever asked to read it.”
She also said the employer did not have any “established system for retaining information stored on mobile phones issued to staff – other than relying on staff not to delete anything from their phones.”
The employee argued that her clients were calling her work phone instead of the issued on-call phone, but the employer based its dismissal on the probability that there “could have been” client data that was erased.
“WSMRC relies that the removal of all data on the on-call phone was misconduct because it could have deleted client records… which is no surprise given WSMRC cannot prove that she actually did delete [them],” the commission noted.
Was there a valid reason for dismissal?
“Deleting or erasing the contents of a device issued by an employer without authorisation is a valid reason for dismissal,” the commission explained.
“There is at least a possibility that there were client records on the on-call phone. The whole purpose of the on-call phone was to provide after-hours emergency contact through a publicised dedicated phone.”
“The potential damage this conduct could cause is reasonably obvious: the employer is deprived of the opportunity to inspect the device, it may compromise WSMRC’s record-keeping systems and potentially its contractual obligations to retain records,” it added.
However, in this case, it faulted the employer for failing to have a proper system regarding safe record-keeping on mobile devices.
“If the preservation of records stored on mobile phones was so vitally important to the WSMRC, then [it should have] put proper systems in place to ensure that these important records were actually preserved,” the commission said.
“For example, WSMRC could have required employees to back up data from their phones to other devices, and the back-up files could have been saved to a central server for safekeeping. This is an obvious and simple measure and would have protected WSMRC’s data and records from both deliberate and accidental loss,” it added.
It also noted that the employee gave “a reasonable explanation,” since she said “there was no client information on the on-call phone. She said that Tier 3 clients never rang the on-call phone because they rang her on her work phone instead.”
In short, the commission noted that the employer merely assumed that calls after 5:00 pm were immediately received on the on-call phone. It also assumed that the employee knew about its contract with SSI.
HRD previously reported about the commission’s decision to uphold the dismissal of an agent after her employer found that she had hung up on phone calls with clients, exposing the business to “significant reputational damage.”
In another case, the employer deducted $300 from the payslip after catching a worker on the phone.
The FWC’s decision
In this case, the commission found the dismissal was harsh, unjust and unreasonable.
“Although there was a valid reason for dismissal and WSMRC gave her the opportunity to respond to the allegations against her, WSMRC did not properly investigate her case.”
“She breached the ‘literal terms’ of the WSMRC Procedure Manual. However, the policy was too complicated for its context and bore little connection to the procedures initiated and/or tolerated by managers.”
“WSMRC simply made a bad judgment call to dismiss her so swiftly,” adding that it was wrong for the employer to assume that its employees would be familiar with the terms of every contract it had, the commission said.
Thus, the commission ordered the employee’s reinstatement to her former position.
