DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Hayes
v
Murdoch University
(U2016/15324)

DEPUTY PRESIDENT BULL

PERTH, 3 MAY 2017

Application for an unfair dismissal remedy, summary dismissal, serious misconduct, inappropriate use of work email and reputational damage to employer. Dismissal terms of Enterprise Agreement.

[1] Mr Stephen Hayes (the applicant) has filed an unfair dismissal application seeking reinstatement/compensation following the termination of his employment with Murdoch University (the respondent/the University). Mr Hayes’ application alleged unfair termination based on the following grounds:

● the respondent did not have a valid reason to terminate his employment for serious misconduct;
● he was not given an opportunity to respond to all the allegations made against him;
● he was unreasonably refused a support person to assist in discussions relating to his dismissal;
● his length of service and significant personal economic loss suffered since the termination makes the dismissal unfair.

[2] Leave to represent Mr Hayes as a paid agent was sought and granted to Mr Kivraj Singh, a law graduate employed by Chapman’s Barristers and Solicitors. Mr Jason Raftos of Counsel sought and was granted leave to appear on behalf of Murdoch University. Both representatives satisfied the criteria at s.596(2)(a) of the Fair Work Act 2009 (the Act).

Background

[3] On 9 December 2016, Mr Hayes was provided with a letter of termination of some four pages signed by Michelle Narustrang, the Director of People and Culture Human Resources Office. The letter of termination traverses the history leading up to Mr Hayes’ dismissal, which is said to be based on serious misconduct, and advised was effective immediately. Despite the termination being based on the ground of serious misconduct an ex-gratia payment of four weeks’ pay equivalent to the notice of termination that would otherwise have been required, plus all accrued leave entitlements were paid to Mr Hayes.

[4] Mr Hayes commenced his employment with Murdoch on 6 March 2012, and was employed as an Interactive Producer which required him to create digital assets for the marketing team for promotions and new campaigns and supervise two programmers. 1

[5] On 5 August 2016, Mr Hayes sent an email to a David Kalisch from the Australian Bureau of Statistics (ABS). The email was sent from the Murdoch University email address with the University’s logo and Mr Hayes’ signature.

[6] The email was in the following terms:

“Mr Kalisch

Who the fuck do you think you are changing the scope of the census by collecting my family members’ personal data electronically to be stored indefinitely. My family’s personal information is none of your fucking business! I worked in IT Mr Kalisch and know (sic) you won’t (actually can’t) keep that data safe.

The Australian Government has been illegally spying on my family’s private emails, private phone conversations, actual physical movements (and god knows what else) for years and treasonously sharing that data with other countries without our knowledge – we wouldn’t even know about this outrage now…

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: [2017] FWC 2174
Decision Date: 3 MAY 2017

CaseChat Overview and Summary

Stephen Hayes applied to the Fair Work Commission for an unfair dismissal remedy against Murdoch University, alleging that his dismissal was harsh, unjust, or unreasonable. The dispute centred on Hayes’ termination for what the university deemed serious misconduct, specifically the inappropriate use of work email for personal purposes, which caused reputational damage to the employer. The case was heard by the Fair Work Commission, which had jurisdiction to hear and determine the merits of Hayes’ unfair dismissal claim under the Fair Work Act 2009.

The central legal issue was whether the university had just cause to terminate Hayes’ employment on the grounds of serious misconduct. Hayes argued that the university’s decision was flawed as it failed to consider the totality of the circumstances and did not adhere to the principles of natural justice. Specifically, Hayes contended that the university did not provide him with an adequate opportunity to respond to the allegations against him, thereby breaching the terms of the applicable Enterprise Agreement. The university, on the other hand, maintained that the dismissal was justified due to the gravity of the misconduct, which warranted summary dismissal.

The Commission found that the university did not follow the correct procedure in dismissing Hayes, as it failed to allow him an opportunity to respond to the allegations and did not provide a fair and transparent process. The Commission held that the university’s decision to summarily dismiss Hayes without allowing him to address the allegations constituted a breach of the procedural fairness requirements under the Enterprise Agreement. Consequently, the Commission ruled that the dismissal was unfair, and Hayes was entitled to an unfair dismissal remedy. The Commission ordered that Hayes be reinstated to his position and awarded him compensation for the loss of income and other entitlements.

Orders