Would it matter if HR found out after termination? Learn about possible consequences
The Fair Work Commission (FWC) has recently dealt with a case relating to an unfair dismissal claim by a worker who refused to comply with a public health direction regarding vaccination. After the worker’s dismissal, it was found out that she “secretly recorded” a meeting with the employer.
One of the main issues of the case revolves around the said conduct that was discovered after termination since the employer was alleging that the act of secretly recording a meeting was a “valid ground” for dismissal. The worker argued that it shouldn’t be a valid reason since it was discovered after the employer decided to terminate her employment. Find out if the FWC agrees with the employer’s argument or not.
The worker was a hospital services attendant. During the onslaught of COVID-19, the Victorian government introduced a public health direction that prohibited the worker’s employer from allowing workers who had not provided evidence they were vaccinated against COVID-19 or covered by a medical exemption to attend work. The FWC noted that the employer could face a “substantial penalty for non-compliance” at the time.
The worker refused to provide proof of vaccination or medical exemption. The worker argued that her job could be done remotely since certain training tasks “could have been performed online.” The FWC found that the worker’s role could not be done from home because she had to attend the hospital to do her job, and “the fact that some minor tasks could be done remotely is irrelevant.”
Since the worker was required to be vaccinated for her to perform her role, she faced the consequences of her decision. The employer listed three valid reasons for her dismissal. First, her inability to perform her role because the employer was prohibited by law from allowing her to attend its premises; second, there was an “implied obligation” for any worker to follow an employer’s lawful and reasonable directions as long as it’s based on a direction that is lawful and within the scope of the contract of employment; and third, a secret recording of a meeting was alleged as a “serious misconduct.”
Is an employee’s “secret recording” of a meeting with the employer a valid ground for dismissal?
The FWC said that “unless there is a justification,” the secret recording of conversations in the workplace is “highly inappropriate,” regardless if it is considered an offence in the relevant jurisdiction. The FWC cited a case that discussed the matter:
“The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.”
The FWC further said that the secret recording amounted to serious misconduct because it was “contrary to [the worker’s] duty of good faith,” adding that the worker gave no “persuasive reason” to justify the act.
“It was unfair to the other participants in the meeting. It was not reasonably necessary to protect any valid interest. This conduct warranted dismissal without notice,” the FWC said.
“A secret recording made by an employee [is] contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship,” the FWC added.
Thus, the FWC held that the worker’s dismissal was not harsh, unjust or unreasonable. The decision was handed down on 31 March.
