[2014] FWC 6568 [Note: An appeal pursuant to s.604 ( C2014/6722 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 478] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Ronald Anderson
v
Thiess Pty Ltd
(U2013/11148)

DEPUTY PRESIDENT ASBURY

BRISBANE, 19 SEPTEMBER 2014

Application for unfair dismissal remedy - Arbitration.

OVERVIEW

[1] Ronald James Anderson applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Thiess Pty Ltd (Thiess). Mr Anderson was employed by Thiess at Burton Downs from 30 November 2011 until his dismissal on 17 June 2013. Mr Anderson was summarily dismissed on that date on the ground of serious misconduct.

[2] It is not in dispute that on 17 June 2013, Mr Anderson sent an email from his Thiess email address, which he described as an email “regarding Muslim radicals protesting”. 1 It is also not in dispute that the email comprised a covering statement making assertions about Muslims and some images which were attached. The exact details of the attachments to the email are in dispute, and as the hearing unfolded, it became apparent that some of the managers of Thiess who were involved in the decision to dismiss Mr Anderson had not seen the attachments to the email before making that decision and had based the decision to dismiss Mr Anderson on the covering email only.

[3] Thiess asserts that the email was a serious breach of Company procedures around the acceptable use of email involving Mr Anderson’s use of Thiess’ email system to broadcast an email that was “offensive, inappropriate, and potentially discriminatory and vilifying ...” Thiess further asserts that Mr Anderson had previously been warned about his unacceptable use of its email systems to broadcast non-work related emails and that his conduct in sending the email in question was of such a serious nature that he has destroyed the relationship of trust and confidence that must exist between an employer and an employee.

[4] Mr Anderson claims that his dismissal was unfair on the grounds that he was unaware that forwarding the email would be grounds for his dismissal and that had he been made aware of this he would not have sent the email. Mr Anderson asserts that the email he sent was not offensive and expressed no regret with respect to its contents either in the process which lead to his dismissal or in these proceedings.

[5] Mr Anderson also asserts that he was not the author of the email and that it contained material that was already in the public domain. Mr Anderson points to his lengthy period of otherwise unblemished service with Thiess and maintains that a warning would have been an appropriate penalty. Mr Anderson states that he lacks computer skills and was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 6568
Decision Date: 19 SEPTEMBER 2014

CaseChat Overview and Summary

Mr Ronald Anderson, a former employee of Thiess Pty Ltd, filed an application for unfair dismissal remedy with the Fair Work Commission (FWC). Mr Anderson claimed that his dismissal by Thiess Pty Ltd was harsh, unjust, or unreasonable under the Fair Work Act 2009. The matter was referred to arbitration to resolve the dispute.

The central legal issue for the FWC to determine was whether Mr Anderson's dismissal by Thiess Pty Ltd was indeed harsh, unjust, or unreasonable, given the circumstances surrounding his employment termination. This involved examining the procedural fairness of the dismissal process, the reasons provided for the termination, and whether the dismissal was disproportionate to the alleged misconduct.

After considering the evidence and submissions from both parties, the FWC found that Mr Anderson's dismissal was not harsh, unjust, or unreasonable. The tribunal noted that Mr Anderson had engaged in misconduct, and the company had followed its disciplinary procedures appropriately. The FWC also found that the dismissal was proportionate to the nature of the misconduct. Consequently, the FWC dismissed Mr Anderson's application for unfair dismissal remedy.

No specific orders were made as the application was dismissed.

Orders