Casual employee faces immediate termination over supplier networking and competitor contact
The Fair Work Commission (FWC) recently dealt with a casual employee who was unfairly dismissed after being terminated for seeking alternative employment opportunities through industry contacts during her personal time.
The FWc found the employer failed to comply with the Small Business Fair Dismissal Code and had no valid reason for dismissal despite concerns about the worker's conduct.
The worker was dismissed immediately after returning from holidays when the employer discovered email correspondence indicating she had asked a supplier to help her find job opportunities and had arranged to meet with a competitor.
The employer argued this constituted serious misconduct involving the misuse of company resources and supplier relationships for personal gain.
Employer alleges serious misconduct
The FWC heard evidence that the employer discovered several emails while the worker was on holiday, including correspondence between a supplier representative and the worker that led to an introduction to a competitor company.
The Commission found the employer accessed the worker's emails during her absence and discovered an email from a supplier introducing her to a competitor as someone potentially seeking a new business development role.
The Commission noted the employer also found a response from the competitor company asking for the worker's curriculum vitae and details about her career aspirations, plus a calendar invitation for a meeting during a time when the worker had indicated she was still on holiday.
The FWC found the employer had prepared a termination letter before hearing the worker's response to these discoveries.
The Commission determined that while the employer genuinely believed the worker had engaged in serious misconduct, the available information was insufficient to form a reasonable belief that her conduct justified immediate dismissal.
The Commission found the employer lacked evidence that the worker had used work time or email for job search activities or had proactively approached the competitor herself.
Compliance requirements for small businesses
The Commission found the employer failed to comply with the Small Business Fair Dismissal Code after determining the employer's belief about serious misconduct was not based on reasonable grounds.
The FWC noted that for summary dismissal under the Code, employers must genuinely believe that the employee's conduct is sufficiently serious to justify immediate dismissal, and this belief must be objectively reasonable.
The Commission determined the available evidence only supported a reasonable belief that the worker had asked a supplier to look for employment opportunities, that the supplier facilitated an introduction to a competitor, and that the worker met with the competitor during her own time.
The Commission found the employer had no basis for believing the worker used work resources for job searching or intended to harm the employer's interests.
The FWC concluded the employer did not have reasonable grounds for believing the worker's conduct was serious enough to warrant immediate dismissal, particularly noting the absence of evidence regarding misuse of confidential information or intellectual property that would typically justify such severe action.
Is there a valid reason for employment termination?
The FWC found the worker was dissatisfied with aspects of her employment and was networking in the industry during her personal time to explore new opportunities.
The Commission noted the worker had concerns about late superannuation payments and wage rates she considered below market value, while the employer wanted to change her casual position to part-time work.
The Commission accepted that the worker made her openness to other employment opportunities known to the supplier representative, but found no evidence that she used company resources or time to respond to job-related emails.
The FWC determined there was no contractual restriction preventing the worker from seeking other employment and no evidence that she intended to harm the employer's interests.
The Commission found one aspect of the worker's conduct unprofessional, noting she had expressed dissatisfaction with her employer to the supplier representative during an emotional phone call.
However, the Commission determined that this isolated incident from months before her dismissal did not constitute a valid reason for termination, particularly as the employer was unaware of this conversation at the time of dismissal.
Procedural fairness failures in dismissal process
The Commission found the worker was denied procedural fairness as she was not given a genuine opportunity to respond to the employer's concerns before the dismissal decision was made.
The FWC noted conflicting accounts of the termination meeting, with the worker claiming she was immediately handed a termination letter and told she was terminated without opportunity to explain.
The Commission determined that, even considering the employer's small business status and lack of human resources expertise, this did not excuse the failure to provide the worker with a proper opportunity to respond to concerns before making the dismissal decision.
The Commission found the employer had already decided to terminate the worker before hearing her response.
The Commission emphasised that procedural fairness ordinarily requires that allegations be put to a person and they be given an opportunity to answer before a decision is made.
The FWC found that this denial of procedural fairness and the sudden nature of the termination decision were relevant to determining whether the dismissal was harsh, unjust or unreasonable.
FWC awards limited compensation reflecting anticipated employment
The Commission awarded compensation equivalent to four weeks' pay after finding the worker would likely have remained employed for that period beyond her notice period, given her existing job search activities.
The FWC noted the worker did not seek reinstatement due to loss of trust and the deteriorated relationship, making compensation the appropriate remedy in the circumstances.
The Commission applied established compensation calculation methods, determining the worker would have earned $2,600 during the four-week period based on her casual employment rate of $40 per hour working 2.5 days per week.
The FWC found the worker had taken reasonable steps to mitigate her loss by searching for alternative employment even before her dismissal occurred.
