Mr Norman Burd v Moran Management T/A Moran Ins Brokers

[2016] FWC 488

[2016] FWC 488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Norman Burd
v
Moran Management T/A Moran Ins Brokers
(U2015/13067)

COMMISSIONER ROE MELBOURNE, 22 JANUARY 2016

Termination of employment – small business code.

[1] Mr Burd worked for Moran Management from November 2011 until his dismissal on 8 September 2015. It is not in dispute and I am satisfied that:

● Moran Management is a small business which employed less than 15 employees, including Mr Burd, at the time of the termination.
● Mr Burd is protected from unfair dismissal because Moran Management is a national system employer, Mr Burd was employed full time for a period of more than 12 months, the termination was at the initiative of the employer and was not for reasons of redundancy.
● Mr Burd was dismissed by letter dated 8 September 2015 “effective immediately”.
● Salary was paid fortnightly in arrears and Mr Burd was paid a fortnightly wage on 16 September 2015. Mr Burd was not paid notice consistent with the NES.
● Mr Burd and Moran Management had earlier, on 6 August 2015, accepted that the employment would cease on 31 December 2015. The email from Mr Burd to Mr Moran acknowledged that the employment would end on that date. There is some dispute about whether or not this was a resignation or notice of dismissal. However, as the termination of employment which is in dispute was on 8 September 2015 there is no need to determine that matter.
● Mr Burd had understandably begun the process of seeking alternative employment during the period from 6 August until the dismissal on 8 September 2015. Mr Moran acknowledges that he encouraged this activity and was aware of it.

[2] Moran alleges that the dismissal was for serious misconduct and was consistent with the small business code.

[3] The alleged misconduct which led to the dismissal was the sending of an email using the company email address to another employer named Ross on 17 August 2015. Mr Moran says that:

“When I approached Norman about this email he had sent from the companies email facilities he denied ever sending it however I had already spoken to Ross who confirmed that he had received the email and Norman had then rang him to discuss it”

[4] Mr Moran says that the email was discovered on 7 September 2015 and he confronted Mr Burd about it and he denied sending it. Mr Moran says that he met with Mr Burd on 8 September and gave him the letter of termination. Mr Burd accepts that Mr Moran raised the email with him on 7 September 2015 and that they discussed the matter. Mr Burd says that he did not deny the existence of the email and that he reminded Mr Moran that he was looking for work with Mr Moran’s knowledge and approval and that the email was his explanation to a potential new employer about why he was seeking to leave his current employment.

[5] Mr Moran provided evidence that Mr Burd had been provided with the company email and internet policy and had been reminded of it on a number of occasions. That policy makes it clear that emails, including personal emails, sent from the company email address may be monitored.

[6] The email of 17 August 2015 was to Ross at his work address seeking employment with his firm. It included the following negative comments about Mr Burd’s employer Mr Moran:

“I need a good working environment, I have my own book which is growing and I aim to develop it further but the office under Daniel has become difficult and most unpleasant.

Daniel, left his wife and 4 kids and is having an affair with the office manager who calls herself general manager ie another Ann who’s leading him by the nose, Moran’s has lost one there biggest accounts plus other business, to put it simply he is struggling and has created a difficult atmosphere for me I’m not into office politics, which I can’t put up with anymore.”

[7] Mr Burd had received three previous written warnings relating to email and internet issues. Mr Burd denied some of these matters were his responsibility. The matter which had led to the 6 August 2015 decision that the employment would end on 31 December 2015 was an error made by Mr Burd. The seriousness of that error was disputed.

[8] The relevant section of the small business code is as follows:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[9] I have no doubt that Mr Moran believed that the sending of the email and the denial of its existence when confronted was sufficiently serious to justify immediate dismissal. The dismissal took place within 24 hours of the discovery of the email. Mr Moran gave evidence that he believed that the conduct was sufficiently serious to justify immediate dismissal. He gave evidence that the following aspects of the email were particularly damaging:

● The personal information was inaccurate as he was divorced. It was also derogatory.
● The sharing of his personal information with a competitor was inappropriate.
● It was inappropriate to share information about a loss of contract with a competitor. The sharing of that information could damage confidence in the business.
● The comments about the business being in difficulty were inaccurate and particularly damaging to confidence in the business and should not have been made to a competitor.

[10] I am satisfied that the personal information was inaccurate and the personal comments were derogatory of Mr Burd’s employer. I am also satisfied that the comments about the state of the business gave the impression that the business was in trouble. I accept Mr Moran’s evidence that this is inaccurate and that the business is not in trouble. I am also satisfied that the comment made to a competitor about the loss of a major client was potentially damaging to confidence in the business.

[11] Mr Burd defended the sending of the email. He said that he was not aware that the personal information was inaccurate as he did know about the divorce or it would have been inappropriate to tell people about the divorce. He said that the information about the loss of contract had come to him from outside the business and as he was not the source of the information it was not inappropriate for him to send it. He said that it was reasonable for him to explain to a potential employer why he was seeking to leave his current employment. Mr Burd gave evidence that it was not his intention to damage Mr Moran. I accept Mr Burd’s evidence that he was focused on explaining to another employer in the industry why he was seeking to leave his current job and that he was not seeking to damage Mr Moran’s business.

[12] It is not necessary to determine whether or not Mr Burd originally denied the existence of the email. There is no doubt that the email was sent and that Mr Burd was given the opportunity to respond to Mr Moran’s concern about the sending of the email. Mr Moran terminated Mr Burd’s employment after confirming its authenticity by discussion with both the sender and the recipient. Mr Moran made his decision after giving Mr Burd an opportunity to explain why he sent the email.

[13] I am satisfied that Mr Moran believed on reasonable grounds that Mr Burd’s conduct in sending the email was sufficiently serious to justify immediate dismissal. Firstly, I accept Mr Moran’s evidence that this was his belief at the time. Secondly, I accept that the belief was on reasonable grounds because:

● He made reasonable inquiry that established the authenticity of the email and that there was no reasonable explanation for the sending of the email.
● The content of the email was destructive of the employment relationship and inconsistent with a desire to continue that relationship even for the limited time between August and December 2015.
● Mr Burd was well aware of the company’s email and internet policy and that under that policy the use of the work email system may be monitored.
● The employment relationship was already tenuous because the parties had agreed (under protest on Mr Burd’s part) that the employment would end on 31 December 2015 and there had been three previous written warnings.

[14] This is not a case where passing comments of a critical nature are made about an employer to friends or family in private at a party or on private email or on a private facebook page. This is a case where work email is used to communicate with another employer in the same industry. The employer had reasonable grounds for perceiving this to be slanderous and damaging to his business. It is no defence as suggested by Mr Burd that the information about Mr Moran’s private life might have been common knowledge. The employer had reasonable grounds to believe that it was damaging to his business to have information about the financial state of the business and its client base released to competitors. Whether the information was true or false the employer had reasonable grounds for concluding that it was serious misconduct to provide this damaging information to another employer in the industry.

[15] The dismissal was in accordance with the small business code.

[16] The application must therefore be dismissed.

COMMISSIONER

Appearances:

Mr Norman Burd represented himself.

Mr Daniel Moran appeared for the Respondent.

Hearing details:

2016

Melbourne

January 19

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